HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Larry Brackenbury
Applicant
-and-
Dave Potter and Ken Wilson
Respondents
DECISION
Adjudicator: Jay Sengupta
Indexed as: Brackenbury v. Potter
APPEARANCES
Larry Brackenbury, Applicant
Self-represented
Dave Potter and Ken Wilson, Respondents
Self-represented
Introduction
1This is one of two Applications filed by the applicant, Larry Brackenbury: one under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the other under the transitional provisions of s.53(5) of the Code. The Applications named a number of personal respondents along with a corporate respondent. This Decision concerns the section 53(5) Application.
2The two Applications were initially joined by Interim Decision 2010 HRTO 447 and held in abeyance because of a stay of proceedings against the corporate respondent Priszm LP by its General Partner Priszm Inc. (“Priszm LP”) under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (the “CCAA”). The other of these two Applications has been withdrawn as against the corporate respondent and resolved through settlement as against the personal respondent.
3By order of the Superior Court of Justice, the proceeding under the CCAA was terminated and the corporate respondent was placed into receivership under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, on September 14, 2011.
4The applicant then filed a Request for Order During Proceedings (“RFOP”) requesting that Priszm LP be removed as a respondent and seeking to continue this Application against the individual respondents. The individual respondents opposed the applicant’s request to remove the corporate respondent and to continue this Application as against them personally.
5In an Interim Decision (2013 HRTO 1473), the request to remove Priszm LP as a respondent was granted and as the applicant alleged that he was harassed by the personal respondents and that their conduct went beyond their role as employees of the corporate respondent, in accordance with the Tribunal’s decisions in Johnson v. Yorkview Lifecare, 2009 HRTO 1338 and Okunbo v. Nadiscorp Logistics Group, 2010 HRTO 423, the Tribunal ordered that the Application would continue as against the remaining personal respondents.
6The Tribunal also directed on its own initiative that a summary hearing be held to determine whether the 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.
7A summary hearing was held by teleconference. For the reasons that follow, this Application is dismissed.
decision
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 on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
10The applicant alleges that in December 2007, he was having a conflict with his immediate supervisor. He reported the details of his conflict to the company’s human resources department. When respondent Potter, who was then an area manager to whom the applicant’s supervisor reported, came to the work site, the applicant was under a significant amount of stress and he approached respondent Potter to discuss specific incidents involving the supervisor in question. He alleges that respondent Potter shrugged his shoulders and shrugged off his complaints. The applicant says that respondent Potter took no time to address his concerns.
11In respect of respondent Wilson, during the one and only time the two interacted with each other in the workplace, the applicant alleges that respondent Wilson, a representative of the company’s human resources department, told him he “was not fifteen and he wasn’t a baby” when going through the internal conflict resolution process in the workplace. The applicant acknowledged that he had sworn at his supervisor and that respondent Wilson also told him that it was not appropriate to swear in the workplace and suggested that he apologize to the supervisor. The applicant takes offence at the comment about his age.
12Having reviewed the written materials in the file and having heard the submissions of the parties, even assuming everything the applicant alleges to be true, in my view, there is no reasonable prospect that the applicant will be able to establish on a balance of probabilities that the conduct of the two personal respondents constitutes an infringement of his rights on the basis of age or any other grounds under the Code.
13Accordingly, the Application is dismissed.
Dated at Toronto, this 4th day of September, 2014.
“Signed by”
Jay Sengupta
Vice-chair