Volnyansky v. Peel (Regional Municipality), 2013 HRTO 738

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lubov Volnyansky Applicant

-and-

The Regional Municipality of Peel Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: May 2, 2013 Citation: 2013 HRTO 738 Indexed as: Volnyansky v. Peel (Regional Municipality)

WRITTEN SUBMISSIONS

Lubov Volnyansky, Applicant Self-represented

The Regional Municipality of Peel, Respondent Ann Dinnert, Counsel

Introduction

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to family status, marital status and reprisal or threat of reprisal in respect of goods, services and facilities.

2Specifically, the applicant alleges that the respondent did not recognize her as a separate parent with three dependants and in that regard, improperly calculated her shelter allowance which created an overpayment which it then threatened to collect. The issue went before the Social Benefits Tribunal ("SBT") which denied both her appeal and her request for reconsideration of that decision.

3In an Interim Decision, 2010 HRTO 1771, the Tribunal stated that it would schedule a half-day conference call hearing to determine whether the Application should be dismissed, in accordance with section 45.1 of the Code, on the basis that the SBT had already appropriately dealt with the substance of the Application. The parties were directed to file submissions in advance of the hearing. Included in the respondent's submissions were a Notice of Appeal and Factum which the applicant filed with the Ontario Divisional Court in relation to her SBT proceedings.

4Upon review of the submissions, the Tribunal issued a Case Assessment Direction ("CAD") dated September 14, 2010, in which it advised the parties that the conference call hearing would be converted to an in-person hearing. It also directed the parties to be prepared to address additional issues, including whether the Tribunal ought to defer the Application in light of the applicant's proceeding before Divisional Court and whether the Application was filed outside the one-year limitation period required by section 34(1) of the Code, and, if so, whether the applicant's delay in filing her Application was made in good faith as required by section 34(2).

5In an Interim Decision, 2011 HRTO 833, the Tribunal deferred the Application pending the conclusion of all the Divisional Court proceedings.

6The applicant filed a Request for Order During Proceedings ("RFOP") advising that the Divisional Court proceedings had concluded, as well as her subsequent appeals to the Court of Appeal and the Supreme Court of Canada, and requesting that her Application be re-activated. The respondent filed a Response to the RFOP opposing the applicant's request to activate. The applicant then filed submissions responding to the respondent's Response to the RFOP.

next steps

7Rule 14.4 of the Tribunal's Rules of Procedure states:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

8While the applicant did not file her Request to Re-activate within 60 days of the conclusion of the Divisional Court proceedings, she did file them within 60 days of the conclusion of the Supreme Court of Canada proceedings. Given that the applicant sought leave to appeal the Divisional Court's decision to the Court of Appeal and to the Supreme Court of Canada, in these circumstances the Tribunal would have continued to defer the Application pending completion of the leave applications. As those proceedings are now complete, it is appropriate to re-activate the Application.

9Since the hearing, during which the parties made their submissions about the applicability of section 45.1 of the Code, the Supreme Court of Canada has issued British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 ("Figliola"), which has been applied by the Tribunal in section 45.1 determinations. See, for example, Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

10The Supreme Court of Canada has also recently issued Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 ("Penner"),which addresses issue estoppel in multiple proceedings. At para. 28 the Court states:

Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposes parties to additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in the administrative law field, may undermine the legislature's intent in setting up the administrative scheme. For these reasons, the law has adopted a number of doctrines to limit relitigation.

11See also Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 ("Danyluk") which addressed issue estoppel.

12The Tribunal finds that it is appropriate to schedule a further hearing date to hear the parties' submissions on the applicability of Figliola and issue estoppel to the Application. This hearing will be in-person, with a Russian interpreter, as was done in the 2010 hearing, unless the applicant indicates to the Tribunal, by email within five days of this Interim Decision, copying the respondent, that she would prefer to proceed by teleconference. Any position by the respondent should also be emailed to the Tribunal within five days of the date of this Interim Decision, copying the applicant, and this will also be considered by the Tribunal.

13The parties are directed to file any additional submissions they wish to make about the issues identified in para. 12 above at least fourteen days prior to the scheduled hearing date.