HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Douglas Brooks Applicant
-and-
City of Toronto Respondent
-and-
Toronto Professional Firefighters’ Association, Local 3888 IAFF Intervenor
INTERIM DECISION
Adjudicator: Geneviève Debané Date: May 14, 2014 Citation: 2014 HRTO 690 Indexed as: Brooks v. Toronto (City)
WRITTEN SUBMISSIONS
Toronto Professional Firefighters’ Association, Local 3888 IAFF, Intervenor Howard Goldblatt, Counsel
1The Application alleges discrimination with respect to employment on the basis of age.
2This Interim Decision addresses a number of procedural issues.
Request to Intervene
3The applicant alleges that the Decision of an Interest Arbitration Board with respect to his entitlement to early retirement benefits is discriminatory.
4On February 25, 2014, the Toronto Professional Firefighters’ Association, Local 3888 IAFF (the “Association”) filed a Request to intervene. The parties have not filed a Response to the Request to intervene and the time for doing so has passed. The Request to intervene is therefore unopposed.
5The Association is the bargaining agent of the applicant and this Application clearly affects both its interest and the interests of its members. As such it is appropriate to grant the Association’s Request to intervene and the title of proceeding is amended to reflect this change.
Summary Hearing
6Having reviewed the materials filed in this Application, the Tribunal directs, on its own initiative, that a summary hearing be held to determine whether this 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.
7Rules 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.
8Details 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.
9In this case, the issue will be whether, assuming the allegations to be true, the applicant’s allegations may be reasonably considered to amount to a Code violation.
10The Application also references section 44 of the Employment Standards Act, 2000, S.O. 2000, c. 41. During the summary hearing the parties shall also address this issue and the applicability in this matter of subsection 25(2.1) of the Code, which states:
The right under section 5 to equal treatment with respect to employment without discrimination because of age is not infringed by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act, 2000 and the regulations thereunder.
11The parties should also be prepared to address the respondent’s position that the Tribunal does not have the jurisdiction to determine the Application because the applicant is seeking to use these proceedings to review the Decision of the Interest Arbitration Board.
Section 45.1 of the Code
12The respondent also asserts that the Interest Arbitration Board considered the application of the Code in its Decision. At the Summary Hearing the parties should be prepared to make submissions on the whether the substance of the Application has been appropriately dealt with, in whole or in part, by the Interest Arbitration Board in its Decision and the issue of whether the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Code, which reads as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
13The parties may wish to refer to the Supreme Court of Canada’s decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, and the Tribunal’s decision in Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.
Next Steps
14The Registrar will schedule a half-day summary hearing by teleconference.
15If the Tribunal determines that the Application has no reasonable prospect of success, that it does not have jurisdiction or that its substance has been appropriately dealt with by another proceeding, it will be dismissed. If the Tribunal does not find that the Application should be dismissed it will continue in the Tribunal process. The Application may be dismissed in whole or in part.
16A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 28 days prior to the teleconference.
17The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.
Dated at Toronto, this 14th day of May, 2014.
“Signed by”
Geneviève Debané Vice-chair