HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
O.L.
Applicant
-and-
The Toronto Sun, Sun Media Corp., Quebecor Inc., Jennifer Sriven, Chris Krygiel, Chris Harrison, Mike Power, James Wallace, Kevin Hann, Jonathan Kingstone and Lisa Lisle
Respondents
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: O.L. v. Toronto Sun
WRITTEN SUBMISSIONS
O.L., Applicant
Ranjan Agarwal, Counsel
The Toronto Sun, Sun Media Corp., Quebecor Inc., Jennifer Sriven, Chris Krygiel, Chris Harrison, Mike Power, James Wallace, Kevin Hann, Jonathan Kingstone and Lisa Lisle, Respondents
Richard Charney, Counsel
1This Application alleging discrimination with respect to employment because of race, colour, ethnic origin, disability, sex, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), was deferred on May 3, 2013, pending adjudication of a grievance brought by the applicant’s union against the corporate respondent Toronto Sun. The reasons for deferral can be found in Interim Decision 2013 HRTO 748.
2After seven days of hearing, an arbitrator concluded on April 7, 2014, that the termination of the applicant from her job as a journalist was justified. He found that she misrepresented the nature and extent of the restrictions that her disability imposed on her ability to work. In coming to this conclusion the arbitrator found that the applicant had not been subjected to discrimination because of disability.
3The applicant requests reactivation of the Application. She maintains that the arbitrator made no findings with respect to her allegations of discrimination because of race, colour, ethnic origin and sex, nor did he address the allegation of reprisal. No mention is made in her request of the arbitrator’s findings with respect to discrimination based on disability.
4The respondents do not oppose reactivation, but request dismissal on the ground that, pursuant to s.45.1 of the Code, the arbitration decision appropriately dealt with the substance of the allegation of discrimination based on disability. Regarding the remaining allegations of discrimination and reprisal they argue for dismissal on the ground that the Application discloses no prima facie case.
5Following the respondents’ response to the applicant’s request the applicant wrote to the Tribunal on June 18, 2014, indicating, amongst other things, that:
The Applicant confirms that she is withdrawing her allegations that some or all of the Respondents discriminated against her on the basis of disability except in so far as the discriminatory conduct on the basis of race, colour, ethnic origin and sex intersected with the Applicant's disability. The grievance arbitrator's decision does not deal with intersecting grounds of discrimination.
6Given the above statements regarding the arbitrator’s determination with respect to the allegation of discrimination based on disability, it is not clear to me what the applicant’s current position amounts to in practical terms. The Tribunal will have to determine whether s. 45.1 applies. It will not make a final determination without affording the parties an opportunity to make oral submissions. The practicalities are further discussed below.
7Having read the Application, along with the arbitrator’s decision, in my view it is appropriate to determine, as a threshold question, whether the allegations of discrimination on the basis of race, colour, ethnic origin and sex and the allegations of reprisal have no reasonable prospect of success, or are out of time, or both.
8Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
9Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be