Taucar v. The University of Western Ontario, 2013 HRTO 798

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Haruyo Taucar

Applicant

-and-

The University of Western Ontario, Donna Penne, Lisa Ann Korab and Mitsume Fukui

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: May 13, 2013

Citation: 2013 HRTO 798

Indexed as: Taucar v. University of Western Ontario

WRITTEN SUBMISSIONS

Haruyo Taucar, Applicant

Christopher E. Taucar, Counsel

The University of Western Ontario, Lisa Ann Korab and Donna Pennee, Respondents

Barry Brown, Counsel

Mitsume Fukui, Respondent

Michael Klug, Counsel

1The narrow issue in this Interim Decision is whether this Application should be deferred until a pending Request for Reconsideration and a possible Application for Judicial Review of the Tribunal’s Decision of April 10, 2013 dismissing a related matter (the “second Application”), Taucar v. University of Western Ontario, 2013 HRTO 597 (the “April decision”), has been decided. The more general issue is the approach the Tribunal should take to case management of this file. I address both in this Interim Decision.

2There is an extensive history to the dispute between the parties, which is set out in full in the April decision. The applicant alleges that a co-worker discriminated against and harassed her over a period of years. There has been an investigation of the complaints against the co-worker, an inquiry pursuant to the collective agreement, a judicial review of the decision of the inquiry in which leave was sought all the way to the Supreme Court of Canada, and the second Application alleging that the inquiry and the university’s actions based upon it were discriminatory. In the April decision, the Tribunal held that the second Application should be dismissed as against the arbitrator who conducted the inquiry on the basis of judicial immunity, and as against the University on the basis that it had no reasonable prospect of success.

3In this Application, filed on April 19, 2010, the applicant alleges that the harassment led her to experience anxiety and depression, which the University failed to accommodate to the point of undue hardship, including by failing to schedule her in a way that she would not see the co-worker, and by contacting her directly instead of communicating with her lawyer. This Application is expressly limited to the issues relating to the accommodation of the applicant’s disability. She expressly states at para. 3 of Schedule “A” to her Application that the complaint against her co-worker “is not the subject-matter of this Human Rights Application under the Code”.

4The Tribunal initially consolidated this Application and the second Application, and deferred them pending the judicial review of the inquiry: 2011 HRTO 550. After the application for leave to appeal to the Supreme Court of Canada was dismissed, the Tribunal reactivated the Applications, scheduled this Application for mediation, and ordered a summary hearing on its own initiative in the second Application. It directed that if both Applications remained outstanding after the summary hearing and mediation, they would remain consolidated. The second Application was dismissed in the April Decision and mediation in this file did not lead to a settlement, leaving this Application outstanding.

5The applicant disagrees with the April decision and has filed a Request for Reconsideration. She wants the Tribunal to await the results of the Request for Reconsideration and any judicial review before proceeding with this Application. The respondents oppose this request and want the matter to proceed.

6In support of the request to defer, the applicant argues that the respondents will be relying on the inquiry report to prejudice this Application. She argues that the full legal landscape should be determined before the hearing is held. She argues that if the April decision is overturned, this case will have to be relitigated. She relies upon the previous decision granting consolidation and determining that both Applications would be deferred pending the previous judicial review of the inquiry decision and the appeals from it.

7The respondents are primarily concerned about timeliness. They believe that the allegations should be determined in a timely manner, as soon as possible.

8In my view, this Application should proceed and should not be deferred. First, I do not agree that the April decision has the impact the applicant claims on the resolution of the issues in this Application. The applicant has carefully separated the two sets of allegations in filing the Applications, and what is at issue in this case is the response to the applicant’s disability, whereas the response to the alleged harassment was at issue in the other case. While it made sense to consolidate the proceedings while both were outstanding, a decision has now been made in the second application dismissing it. Both reconsideration and judicial review are extraordinary remedies, and are not appeals. I am concerned about delaying a resolution of this case, at this stage, based on a reconsideration and judicial review that are tangential to the main issues of accommodation of disability. There is no possibility that the reconsideration and judicial review will make a hearing in this matter unnecessary.

9Most important in my decision not to exercise my discretion to defer is the need to move this matter forward. The events in question date back to 2009. The Application was filed in 2010. It is now 2013, and the parties continue to litigate multiple issues in multiple places. It is evident, even from the correspondence on the issue of deferral, that the parties’ relationships remain difficult and that these issues are highly stressful for everyone involved. The Tribunal’s dispute resolution process is meant to provide a fair, just and expeditious resolution for both applicants and respondents. It would not be fair to have this matter waiting in abeyance for an indefinite period as matters are challenged, given the stress and conflict that it engenders and given that the other proceedings will not resolve it even if the applicant is successful.

10With the benefit of hindsight, it may have been more expeditious for the Tribunal to proceed with this Application when the previous deferral decision was made in March 2011. As time has passed it has become evident that the issues of alleged disability discrimination and reprisal should be dealt with and decided, one way or the other, so that the parties can move forward. The Tribunal intends to exercise its powers under the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”) and the Rules to ensure that this matter moves forward in an expeditious manner towards the merits of the case, with as little time spent as possible on technical and procedural matters.

ORDER

11The Request to Defer is refused. The Tribunal will schedule a case management conference call to address case management and the next steps in this Application. In preparation, any party that intends to bring any Request of any nature must deliver and file it within two weeks of the date of this Interim Decision. No responses to Requests should be filed until directed.

The Tribunal will deal, during the conference call, with the process for responding, if a response is necessary.