Faye Grange v. City of Toronto, 2014 HRTO 1660

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Faye Grange

Applicant

-and-

City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume
Date: November 17, 2014
Citation: 2014 HRTO 1660
Indexed as: Grange v. Toronto (City)

WRITTEN SUBMISSIONS

City of Toronto, Respondent

Amandi Esonwanne, Counsel

1This Interim Decision addresses the respondent’s request that the Tribunal reconsider an Interim Decision (2014 HRTO 633) denying the respondent’s Request to dismiss this Application on the basis of timeliness.

2In the Interim Decision, I refused to exercise my discretion to dismiss the Application prior to hearing. The Applicant argued that her Application is timely because she alleges a series of incidents, and that her Application was filed within one year of the last incident. The respondent argued that the allegations do not constitute a series of incidents. I determined that the applicant’s allegations were sufficiently particularized to meet the test under section 34(1) and that I would not engage in a detailed and searching analysis of each individual allegation prior to hearing. I also indicated in the Interim Decision that whether or not the applicant can prove that the incidents occurred and that they lead to a finding of discrimination is a matter to be determined at hearing on the basis of evidence.

3I also stated that in my view, the applicant’s allegations are consistent with those in DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049, and made this statement at paragraph 52 of the Interim Decision:

…the underlying theme of the Application is that the applicant experienced marginalization as a racialized woman at the City of Toronto, and that these experiences were a direct manifestation of the broader issues of systemic discrimination within her workplace. The applicant alleges that she experienced systemic discrimination in her workplace over a period of years culminating in the necessity to take a medical leave. While she was on medical leave, she alleges that the respondents engaged in discrimination by advertising a position which is essentially her own but at a higher pay grade. As was the case in Henry, I find that the allegations are based on assertions of fact that could reasonably be viewed as sufficiently similar or related to constitute, if established, a pattern of conduct, rather than on alleged incidents relating to discrete issues without some connection or nexus.

4Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules. The Tribunal’s Practice Direction on Reconsideration emphasizes, among other things, that Reconsideration is a discretionary remedy and that it is not an appeal or an opportunity for a party to change the way it presented its case.

5Rule 26.1 of the Tribunal’s Rules of Procedure provides that a party may request reconsideration of a final decision of the Tribunal. A decision will only be considered final where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties.

6The respondent argues that the Interim Decision should be characterized as a final decision for the purpose of reconsideration because it finally disposes of the issue of the timeliness of the Application, which the respondent describes as a central issue in the Application. The respondent argues that the Tribunal has reconsidered decisions on timeliness and cites Woodbeck v. Thunder Bay (City), 2011 HRTO 1010 (“Woodbeck”), and Farahani v. Toronto (City), 2012 HRTO 1295 (“Farahani”), in support of that position.

7In Woodbeck, the applicant filed against his former employer more than one year after he was terminated. He also filed a separate Application against his union. The Application against his former employer was dismissed. Although the decision itself is referred to as an Interim Decision, this is only because the two Applications were joined and the application against the union was not dismissed. The Application against the applicant’s former employer was dismissed in its entirety and is therefore a final decision for the purpose of reconsideration.

8In Farahani, the substance of the Application was dismissed but for one allegation and as a result, the adjudicator concluded that some of the central issues in the Application had been disposed of.

9Neither of the decisions cited by the respondent support the argument that a decision “not to dismiss” for timeliness, where no aspect of the substance of the Application has been addressed, constitutes a final decision for the purpose of reconsideration.

10In Ontario Human Rights Commission v. Ontario Teachers’ Federation, 1994 CanLII 10578 (ON SC), [1994] O.J. No. 1585 (“OTF”), the Divisional Court stated that:

…a decision will be considered final where that decision has the effect of finally determining the real matter in dispute between the parties, or a central issue raised between the parties. Even though other issues may remain to be resolved, if the decision disposes of a substantive right of a party, it will be considered final. Courts have also held that there may be more than one final judgment or order in a matter, such as when a substantive issue is disposed of while other matters are reserved for subsequent determination. The decision will not be considered final if it merely deals with a collateral matter to the real matter or central issue between the parties.

11In determining whether a decision is final or interlocutory, the Divisional Court in OTF set out the following three questions:

• Does the decision finally dispose of a claim or issue?;

• Does the decision determine the real matter in dispute?;

• Does the decision dispose of a substantial issue between the parties?.

12Applying that analysis to this case, I have determined that the Interim Decision on timeliness is not a final one.

13First, the Interim Decision does not finally dispose of a claim or issue between the parties. The claim is that the applicant has experienced discrimination. The issue advanced by the respondent is that the Application is untimely because the allegations do not constitute a series of incidents and the last allegation in the series is not an allegation of discrimination. The Interim Decision not to dismiss the Application does not finally dispose of the issues raised by the respondent. The result of the Interim Decision is that the Application will proceed to a hearing where the applicant will be required to prove her allegations. Ultimately, the respondent may prevail on the issues raised at the preliminary stage by the applicant’s failure to prove that the incidents occurred or that they constitute discrimination.

14Second, the interim decision does not determine the real matter in dispute, which is whether the applicant can prove her allegations of discrimination. In considering this question, the Divisional Court in OTF relied on the decision in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 at p. 678 (C.A.), that a decision is interlocutory if the merits of the case remain to be determined.

15Third, the interim decision does not dispose of a substantial issue between the parties. In OTF the Divisional Court indicated that the issue must be one which is “substantive” or amounts to the loss of a “substantial right”. Unlike the appellants in the OTF case, the respondents in this Application have not lost any substantive rights, including the right to claim that the applicant’s allegations are not discriminatory.

16Fundamentally, the Interim Decision at issue in this case does not dispose of any rights on a final basis. It simply permits the applicant to move to the stage where she will be required to prove her allegations. In addition, it is important to note that the decision in OTF arose in the context where there was a statutory right of appeal from a final decision of the Tribunal. Since the amendments to the Code came into force in 2008, there is no longer a statutory right of appeal and the Tribunal’s reconsideration power is discretionary.

17Having considered these authorities and the context in which the issue arises, I have concluded that the Interim Decision cited above is not a final decision and therefore it cannot be the subject of a reconsideration request. See Galuego v. Kensington Health Centre, 2009 HRTO 179.

18Accordingly, the respondent’s Request for Reconsideration is dismissed.

Order

19The Tribunal orders the following:

• The Request for Reconsideration is denied;

• The Tribunal will schedule a case management conference call with the parties for the purpose preparing for hearing.