Peshimam v. Toronto Transit Commission, 2014 HRTO 864

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anis Peshimam

Applicant

-and-

Toronto Transit Commission

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: June 11, 2014

Citation: 2014 HRTO 864

Indexed as: Peshimam v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Anis Peshimam, Applicant

Tatha Swann, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In Decision 2014 HRTO 634 dated May 5, 2014 (the “Decision”) this Application was dismissed as abandoned, the applicant having failed to respond to directions made in a Case Assessment Direction issued on March 24, 2014.

2The applicant filed a Request for Reconsideration on June 3, 2014 arguing that he had filed submissions in response to the March 24, 2014 Directions and therefore the Decision should be reconsidered and set aside. The respondent was not called upon to respond to the Request.

3In fact the applicant did respond to the Tribunal’s Directions by filing a Reply (Form 3) on March 28, 2014, however due to administrative error these materials were not in front of me when I released the Decision on May 5, 2014. The Tribunal apologizes to the parties for this error.

4Given this error I find that it would be appropriate to grant the Request for Reconsideration pursuant to section 47 of the Code and Rule 26 of the Tribunal’s Rules. The Decision is reconsidered and set aside. See LeNeve v. Point Edward Casino, 2008 HRTO 392.

5In his Request for Reconsideration the applicant sought further relief in the event that the Decision was reversed. These requests will be addressed below.

Request for Summary Hearing

6On February 14, 2014 the respondent filed a Request for Summary Hearing (Form 26) and a Request for Order during Proceeding (“Form 10”), (“Requests”) seeking the dismissal of all or part of the Application on the basis of delay and/or because all or part of the Application has no reasonable prospect of success. The respondent also seeks a direction that the applicant clarify whether or not he is claiming that the respondent has failed to accommodate a disability and to provide further particulars for many of his allegations.

7Although the applicant did file a Reply he did not address the substance of any of the respondent’s Requests.

8The Request for Summary for Hearing is granted. The Request to dismiss all or part of the Application due to delay will also be dealt with at the Summary Hearing. The applicant is directed to deliver and file a response to the Request for dismissal.

9Rules 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.

10Details 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.

11First, it appears that many of the allegations may be untimely. Section 34 (1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

The parties may make submissions on whether the Application is outside the Tribunal’s jurisdiction for this reason.

12Secondly, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the ground or grounds alleged.

13In his Request for Reconsideration the applicant requested that in the event that reconsideration was granted he be given time to deliver and file a Request to amend the Application by the addition of new grounds of discrimination and to add the applicant’s Trade Union as a respondent. I observe that the respondent has also complained that the Application as it is, is lacking in particulars of many of the allegations.

14In the circumstances the applicant’s requests are granted and the applicant is directed to deliver and file on all proposed parties to the Application a Form 10 Request together with his proposed amended Application setting out full particulars of all of his allegations of discrimination within 28 days of this Direction. A copy of this Reconsideration Decision together with a copy of any of the original Application, Response, Reply and other pleadings of the parties not already provided to the affected party will be delivered to the proposed new respondent by the Tribunal.

15The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed on the basis of delay or as having no reasonable prospect of success, and point to the evidence on which the applicant will establish a Code link to the respondent’s alleged actions. No witnesses will give evidence during the summary hearing.

16If the Tribunal determines that the Application has no reasonable prospect of success or is outside its jurisdiction because of delay, 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.

17A 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 14 days prior to the teleconference.

18The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

Orders and Directions

19The Tribunal makes the following Orders and Directions;

a. The Decision is reconsidered and set aside.

b. The Registrar will schedule a half-day summary hearing by conference call. 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 14 days prior to the teleconference.

c. The applicant is directed to deliver and file on all proposed parties to the Application a Form 10 Request together with his proposed amended Application setting out full particulars of all of his allegations of discrimination within 21 days of this Direction.

d. The respondent and proposed respondent(s) will deliver and file their Responses, if any, to the proposed amended Application within 21 days of receiving the applicant’s materials.

e. A copy of this Reconsideration Decision together with a copy of any of the original Application, Response, Reply and other pleadings of the parties not already provided to the affected party will be delivered to the proposed new respondent by the Tribunal.

f. Any issues arising out of the Applicant’s proposed amended Application will be raised by the parties at the latest 14 days before the scheduled date of the summary hearing and may, at the discretion of the hearing adjudicator, be dealt with at that time.