HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Salvatore Sfara
Applicant
-and-
City of Toronto
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Sfara v. Toronto (City)
APPEARANCES
Salvatore Sfara, Applicant
Michael Farago, Counsel
City of Toronto, Respondent
Kerri Kitchen, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex. This Interim Decision deals with two Requests for Order During Proceeding (“Requests”) filed by the respondent. The applicant opposes both requests.
Request for Summary Hearing/Dismissal pursuant to s. 45.1 of the Code
2The respondent’s Request for a Summary Hearing is denied. The Tribunal’s Rule 19A(6) provides that where a Request for Summary Hearing is denied the Tribunal need not give reasons. In the circumstances of this case it would not be appropriate to provide reasons other than to say that the issues raised by the applicant and respondent may only be resolved after hearing at least some of the evidence in this case. I note as well that my conclusion at this stage that the Application should not be sent to a summary hearing does not of course mean that it will be successful, but that some evidence will need to be heard. It may be that a renewal of this Request might be appropriate at some stage in the hearing process.
3In the alternative, the respondent argued that the Application should be dismissed because it had been appropriately dealt with in a grievance which was filed on behalf of the applicant. The respondent indicates that the grievance was filed on January 26, 2012, and was investigated by the respondent. The applicant’s bargaining agent has not taken the grievance to the Ontario Labour Relations Board for adjudication.
4This aspect of the respondent’s Request is denied as well. Section 45.1 of the Code provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
5The Tribunal has interpreted section 45.1 as contemplating a two-step analysis. First, was there a prior proceeding that dealt with the issues raised in the Application? If the answer to that question is yes, then the second stage of the analysis is whether or not the substance of the Application has been appropriately dealt with. See Campbell v. Toronto District School Board, 2008 HRTO 62. The Tribunal has also concluded in several cases that the processing of a grievance prior to its referral to arbitration, in absence of a settlement in which the applicant participates, is not a proceeding within the meaning of section 45.1 of the Code. See Foley v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 222, 2009 HRTO 1680; Yakymova v. Slovenian Linden Foundation, 2012 HRTO 1075. In this case while a grievance was filed, it was not referred to arbitration and there does not appear to have been a settlement of the issues in dispute.
Request to Dismiss for Delay
6In a second Request, the respondent seeks the dismissal of certain allegations which appear to have occurred more than 12 months prior to the Application being filed.
7The respondent relies on sections 34(1) and (2) of the Code which provides:
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
8The respondent argues that the only allegation of the applicant that even remotely engages the ground of sex is out of time and accordingly is not part of a series of incidents connected to a timely allegation. The respondent argues as well that the issues of delay and no reasonable prospect of success are linked in that if the October 2011 allegations is out of time, it is unconnected to any other allegation and accordingly the Application must be dismissed as having no reasonable prospect of success.
9The applicant argues that his narrative of allegations must be considered in light of the October 2011 incident. The applicant argues that given this alleged incident, the later alleged incidents, including one of allegedly unwanted touching, could be considered to be a pattern of unwanted conduct constituting harassment.
10In my view the resolution of these issues may require some evidence. However that does not necessarily require a full hearing of all of the allegations or all of the evidence. As indicated above it may be appropriate at some stage of the proceeding to revisit these issues. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.
Mediation and Next Steps
11The applicant has agreed to participate in mediation. The respondent has not. The respondent is directed to indicate whether or not it consents to participate in mediation within 14 days of this Interim Decision, failing which the Application will be scheduled for a one-day hearing in Toronto.
12I am not seized.
Dated at Toronto, this 24th day of April, 2013.
“Signed by”
David Muir
Vice-chair```