HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Luda Vidisheva
Applicant
-and-
City of Ottawa and Canadian Union of Public Employees, Local 503
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Vidisheva v. Ottawa (City)
1This Application was filed on July 7, 2014 and alleges discrimination with respect to employment because of place of origin, ethnic origin, disability, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In the workplace, the applicant was represented by Canadian Union of Public Employees, Local 503 (“the union”). The union’s name has been corrected, based upon the union’s submissions, from how it was identified by the applicant in the Application.
2The narrative contained in the Application provides information from 2010 until 2014. It appears that the applicant was terminated on March 29, 2013, about which a grievance was filed by the union, and the grievance proceeded to arbitration. The applicant named the arbitrator, David Starkman, as a personal respondent. The Application has not been sent to the respondents to file their respective Responses.
3In a Case Assessment Direction (“CAD”) issued by the Tribunal, the Tribunal identified several preliminary issues that it stated needed to be addressed before the respondents file their Responses. Those issues were:
Should the Tribunal dismiss the Application because another proceeding, the arbitration, appropriately dealt with the substance of the Application pursuant to section 45.1 of the Code? and,
Does judicial immunity apply to the respondent David Starkman?
4The union filed comprehensive submissions addressing these issues. David Starkman filed a letter, submitting that judicial immunity applies to him, and relied upon the union’s submissions. The City of Ottawa also filed a letter submitting that it adopts and relies upon the union’s submissions.
5The Tribunal issued the CAD to the applicant by regular mail and Purolator. The Purolator material was returned by Purolator as not being picked up by the applicant. The material issued by regular mail was not returned. The applicant has not responded to the CAD and the time for doing so has elapsed.
judicial immunity
6The Tribunal has held in Cartier v. Nairn, 2009 HRTO 2208, that the doctrine of judicial immunity is attached to labour arbitrators, appointed pursuant to the Ontario Labour Relations Act, 1995, in the exercise of their duties as adjudicators. See also James v. Toronto Transit Commission, 2013 HRTO 1816.
7According to the materials filed by the union, Mr. Starkman was the chair of a three-person arbitration panel that was appointed to hear the applicant’s termination grievance. The allegations in the Application relating to Mr. Starkman pertain to his exercise of adjudicative functions during the arbitration process, and, as such, are not properly the subject of an Application under the Code.
8Accordingly, the Application is dismissed as against David Starkman and the style of cause is amended accordingly.
SEction 45.1, abuse of process, and issue estoppel
9The union submits that the majority of the arbitration panel issued a bottom-line decision, by email, pertaining to the issues before it. Subsequent to receiving this bottom-line decision, the parties were able to come to a resolution of the applicant’s grievance, although the applicant did not sign minutes of settlement. The terms of the minutes of settlement have been implemented, with the applicant contacting the union about implementation issues arising from the minutes of settlement.
10As set out in the CAD, section 45.1 of the Code states:
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.
11In this case, it is appropriate to schedule a half-day hearing, by conference call, to hear the parties’ submissions about the applicability of section 45.1 of the Code to the Application, as well as whether it would be an abuse of process and/or trigger issue estoppel to allow the Application to proceed. The Tribunal will issue a separate Notice of Conference Call hearing to the parties setting out the date and time of the conference call hearing, along with dial-in instructions.
12The parties are directed to file with the Tribunal, copying the other parties, any material upon which they will be relying at the conference call hearing, including documentation and case law, at least 14 days prior to the conference call hearing.
13The parties may wish to refer to the Supreme Court of Canada’s decisions in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, and Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, which addressed the issues identified in para. 11 above.
other issues
Summary Hearing
14Having 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 against one or both of the respondents. The summary hearing will also be argued during the conference call, with the applicant proceeding first to present argument about why the Application should not be dismissed as having no reasonable prospect of success. No witnesses will give evidence during the summary hearing.
15Rules 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.
16Details 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.
17If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed against one or both respondent(s). If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part. It may also be dismissed because of one of the other issues identified in this Interim Decision.
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.
Timeliness
19It appears that the Application may be untimely as the applicant’s termination date was March 2013 and the Application was filed July 7, 2014. This issue will also be addressed during the conference call hearing.
20Section 34(1) of the Code requires that an application be filed within one year after the date of the last incident upon which the application is based, unless there is a good faith explanation for the delay. Section 34(1) is a limitation period established under the Code. The Tribunal has held in numerous decisions that if an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
21Sections 34(1) and (2) state:
(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 subsection 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.
22The applicant must file with the Tribunal, copying the respondents, any good faith explanation upon which she intends to rely, as least 14 days prior to the conference call hearing.
Personal Respondents
23In the CAD, the Tribunal identified some individuals as personal respondents in addition to David Starkman. Upon review of the Application, it does not appear that these individuals are personal respondents, but, rather, are contacts for one of the respondents, and accordingly are not identified as respondents in this Interim Decision. The Tribunal will seek clarification of that issue from the applicant during the conference call hearing.
Hearing Notes
24Finally, the issue of the hearing notes that the applicant filed with the Tribunal, as identified in the CAD, will also be addressed during the conference call hearing.
order
25The Tribunal orders the following:
a. David Starkman is removed as a personal respondent and the style of cause is amended accordingly;
b. The Tribunal will issue a Notice of Conference Call hearing to hear the parties’ submissions on:
The applicability of section 45.1 of the Code;
Whether it would be an abuse of process or issue estoppel to permit the Application to continue;
Whether there is a reasonable prospect of success against one or both of the respondents; and,
Whether the Application is timely;
c. The parties are required to file, with the Tribunal, and copying the other parties, any materials upon which they intend to rely at the conference call hearing at least 14 days in advance of the conference call hearing;
d. The identification of the personal respondents, if any, will be addressed during the conference call hearing; and
e. The hearing notes that the applicant filed with the Tribunal will be addressed during the conference call hearing.
26This Interim Decision will be issued to the applicant by regular mail, courier, and email.
27I am not seized with this matter.
Dated at Toronto, this 23rd day of January, 2015.
“signed by”
Alison Renton
Vice-chair