Donald Williams v. Toronto Transit Commission, 2014 HRTO 593

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Williams

Applicant

-and-

Toronto Transit Commission

Respondent

-and-

Amalgamated Transit Union Local 113

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: April 28, 2014

Citation: 2014 HRTO 593

Indexed as: Williams v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Donald Williams, Applicant

Harry Kopyto, Representative

Toronto Transit Commission, Respondent

Lucy Siraco, Counsel

Introduction

1This Interim Decision addresses the respondent’s request that the Tribunal remove two personal respondents named in the Application. It also addresses the respondent’s request for a summary hearing.

Removal of Personal Respondents

2The respondent requested the removal of Nick Valente and Lori MacGregor as personal respondents to the Application. In its request, the corporate respondent accepted vicarious liability for any breaches by these individuals of the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”). The corporate respondent also undertook to make both individuals available to respond to the allegations as needed. By letter dated March 26, 2014, the applicant consented to remove Mr. Valente and Ms. MacGregor as personal respondents in light of the corporate respondent’s undertaking to make them available to testify.

3On the consent of the parties, Mr. Valente and Ms. MacGregor are removed as personal respondents and the style of cause shall be amended accordingly.

Striking of Allegations

4The respondent has also requested that the applicant’s allegations of reprisal and discrimination due to association with a person identified by a prohibited ground should be struck for failure to establish a prima facie case.

5Pursuant to s. 43(2) of the Code, an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules. For this reason, the Application cannot be dismissed without affording the parties the opportunity to make oral submissions.

6I have considered whether it would be appropriate to hold a summary hearing under Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) to determine whether the applicant’s Application stands no reasonable prospect of success. After reviewing the parties’ submissions, I have determined that a summary hearing is not appropriate due to the disputed facts in this case. Rule 19A(6) of the Tribunal’s Rules provides that where a Request for Summary Hearing is denied the Tribunal need not give reasons. However, in my view, it is appropriate to make the following observations.

7Upon my review of the Application, the respondent’s submissions do appear to have merit in part in that there appear to be no facts set out in the Application that would support a reprisal as that term is defined under the Code. A reprisal under the Code occurs when a person is retaliated against for claiming and enforcing his or her rights under the Code, or for instituting or participating in proceedings under the Code. The applicant has not provided any information in his Application that would link his allegations with any attempt on his part to claim or enforce his rights under the Code or to institute or participate in proceedings under the Code.

8However, there is information in the Application that seeks to provide a link between the applicant’s allegations and his association with his co-worker who he claims is a person identified by a prohibited ground. In my view, the issues raised by the applicant and respondent in relation to this Code ground are not appropriately resolved by way of summary hearing. They may only be resolved after hearing evidence in a hearing on the merits. Summary hearings do not involve the hearing of any evidence. In order to address the respondent’s refutation of the applicant’s version of the facts, a hearing on the merits must be held.

Audio-Recording of Preliminary Hearing

9In Interim Decision, 2014 HRTO 327, I directed as follows:

Within 14 days of the date of this Interim Decision, the applicant is directed to provide the Tribunal and the other parties with a copy of the audio recording made of the preliminary hearing. Alternatively, the applicant may destroy the originals of the audio tapes from the hearing. If he pursues this option, he shall provide a statement to the Tribunal, copied to the other parties, declaring that the audio tapes of the preliminary hearing have been destroyed and that they were not used for any purpose other than to supplement the applicant’s notes of the hearing.

10By letter dated March 14, 2014, the applicant’s representative indicated that he had not received the audio tapes returned by the Tribunal. By e-mail dated March 26, 2014, the applicant confirmed that he had destroyed the audiotapes.

11The Tribunal has confirmed that the audiotapes were returned to the applicant himself and not his representative. In the circumstances of this case, especially in light of the very poor quality of the tapes, the Tribunal accepts the applicant’s confirmation that the audiotapes have been destroyed.

orders

12For the reasons set out above, the Tribunal orders as follows:

a. Mr. Valente and Ms. MacGregor are removed as personal respondents on the corporate respondent’s undertaking to make them available to testify if necessary. The style of cause shall be amended accordingly.

b. The respondent’s request that the Application be dismissed for failure to make out a prima facie case is denied.

c. The Registrar will schedule mediation in this Application as both parties have agreed to mediation.

13I am not seized.