Sylvia Francis v. Great Northern Hydroponics, 2015 HRTO 1175

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sylvia Francis

Applicant

-and-

Great Northern Hydroponics

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 3, 2015

Citation: 2015 HRTO 1175

Indexed as: Francis v. Great Northern Hydroponics

WRITTEN SUBMISSIONS

Sylvia Francis, Applicant

Antony Singleton, Counsel

Great Northern Hydroponics, Respondent

Anthony Giannotti, Counsel

Introduction

1The purpose of this Interim Decision is to deal with the applicant’s request to reactivate her deferred Application, and two preliminary issues raised by the parties.

BACKGROUND

2On October 2, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her because of her race, colour, ancestry, place of origin, citizenship, ethnic origin, disability, and sex when it terminated her employment. She also alleged that the termination was a reprisal for having claimed her rights under the Code.

3On November 29, 2013, the respondent filed a Response, which denied the applicant’s allegations of discrimination and reprisal, and stated that it had terminated her employment for a non-discriminatory reason, namely, her inappropriate conduct and behaviour. The respondent also requested that the Tribunal dismiss the Application on a preliminary basis because a proceeding before the Workplace Safety and Insurance Board (the “WSIB”) appropriately dealt with its substance.

4On January 17, 2014, the Tribunal issued an Interim Decision, 2014 HRTO 75, which ordered that the Application be deferred pending the conclusion of a proceeding before the WSIB.

5On July 22, 2015, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal reactivate her deferred Application. She also requested that the Tribunal order the respondent to remove material covered by settlement privilege and all references to it from the Response to the Application.

6On July 31, 2015, the respondent filed a Response to the RFOP, which opposed the applicant’s reactivation request, and her request that a letter and references to it be removed from the Response to the Application.

REACTIVATION

7Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure provide that where a party wishes to proceed with an Application which has been deferred, the party must file an RFOP with the Tribunal and deliver it to the other parties within 60 days after the conclusion of the other proceeding, and must include a copy of the decision or order in the other proceeding, if any.

8In my view, the Application should be reactivated because the applicant has complied with the requirements in Rules 14.3 and 14.4. There is a dispute between the parties as to whether the termination of employment issue is still a live issue in the other proceeding, but it is clear from the materials before me that it is not. Specifically, the materials show that the applicant did not raise the termination of employment issue before the WSIB’s Appeals Resolution Officer (“ARO”), the ARO’s Decision did not address the issue, and the applicant has not raised the issue in her appeal to the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”).

9Accordingly, the applicant’s request that the Tribunal reactivate her deferred Application is granted.

PRIVILEGED MATERIAL

10The Tribunal will normally not allow parties to rely upon statements made during settlement discussions or settlement documents. The policy reason for this prohibition was explained in Berger v. City of Toronto, 2015 HRTO 129 at para. 20 as follows:

The majority of Applications are resolved by the parties either with or without the use of Mediation. It is important that the parties are able to have open dialogue and discussion of the issues with a view to the resolution of the Application. To permit a party to raise, either offers to settle or settlement discussions, during the course of litigation would have a chilling effect on the parties’ ability to resolve the issues.

11Settlement privilege is not absolute. In Sabel Offshore Energy Inc. v. Ameron International Corp., [2013] SCC 37, the Supreme Court of Canada stated at para. 19:

There are, inevitably, exceptions to the privilege. To come within those exceptions, a defendant must show that, on balance, “a competing public interest outweighs the public interest in encouraging settlement” (Dos Santos Estate v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, 2005 BCCA 4, 207 B.C.A.C. 54, at para. 20).

12The applicant’s request is in relation to a “without prejudice” offer to settle letter dated August 23, 2013, which the respondent attached to its Response to the Application and referred to in the body of its Response. The respondent’s position is that this letter is not privileged because it was sent by the applicant to another company, Soave Hydroponics.

13The applicant’s request is granted. The letter at issue is clearly an offer to settle, to which privilege attaches, and the respondent has not identified a competing public interest that outweighs the public interest in encouraging settlement. The respondent’s position is, with respect, disingenuous. The Employer’s Report of Injury (Form 7) which was filed with the WSIB identified the legal name of the applicant’s employer as “Colasanti Inc. and Soave Hydroponics”. This is why the applicant sent the August 23, 2013 offer to settle letter to Soave Hydroponics. I would also note that in its Response the respondent referred to Colasanti Inc. and Soave Hydroponics as a “related company”, and indicated that it responded to the applicant’s letter less than a month later.

14Accordingly, the respondent is directed to file an amended Response to the Application, which removes the August 23, 2013 offer to settle letter and all references to it.

SECTION 45.1 OF THE CODE

15Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. This Tribunal has found that the Supreme Court of Canada’s reasoning in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 applies to the interpretation of s. 45.1 of the Code. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, and Claybourn v. Toronto Police Services Board, 2013 HRTO 129.

16Section 45.1 of the Code requires a two-part analysis: (1) whether there was another proceeding and, if so, (2) whether it appropriately dealt with the substance of the Application.

17Based on the materials before me, it appears that the termination of employment issue was dealt with in the initial stages of the WSIB process where decisions adverse to the applicant were made by a Case Manager (an initial decision on February 26, 2013 and a reconsideration decision on June 1, 2013), but the applicant did not pursue this issue before the WSIB’s ARO, and is not pursuing it in her appeal to the WSIAT.

18The Tribunal directs that a half-day preliminary hearing by teleconference be held to address the respondent’s request that the Application be dismissed pursuant to s. 45.1 of the Code because another proceeding has appropriately dealt with its substance.

19The issue at the preliminary hearing will be whether the process before the WSIB’s Case Manager was a “proceeding”, and if so, whether the Case Manager’s decisions appropriately dealt with the substance of the Application.

20A Notice of Preliminary 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 which they intend to rely upon no later than 14 days prior to the teleconference.

ORDER

21The Tribunal makes the following orders and directions:

1. The Application is reactivated.

2. Within two weeks of the date of this Interim Decision, the respondent shall deliver to the applicant and file with the Tribunal an amended Response to the Application, which removes the August 23, 2013 offer to settle letter and all references to it.

3. A half-day preliminary hearing by teleconference shall be held to address the respondent’s request that the Application be dismissed pursuant to s. 45.1 of the Code because another proceeding has appropriately dealt with its substance.

4. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases which they intend to rely upon no later than 14 days prior to the teleconference.

22I am not seized of this matter.