Worley v. Ontario Cycling Association, 2015 HRTO 1542

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristen Worley

Applicants

-and-

Ontario Cycling Association, Cycling Canada Cyclisme,

International Olympic Committee and Union Cycliste Internationale

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: November 16, 2015

Citation: 2015 HRTO 1542

Indexed as: Worley v. Ontario Cycling Association

WRITTEN SUBMISSIONS

Kristen Worley, Applicant

Brenda Culbert, Counsel

International Olympic Committee, Respondent

Ronald Slaght, Counsel

Union Cycliste Internationale, Respondent

Caroline (Nini) Jones, Counsel

1The applicant filed an Application alleging that the respondents discriminated against her because of sex contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2This Interim Decision addresses the International Olympic Committee’s (“IOC”) request that the Tribunal defer consideration of this Application pending the completion of a judicial review application commenced by the IOC. The IOC has begun an application seeking judicial review of my Interim Decision, 2015 HRTO 1135, in which I found that both the IOC and Union Cycliste Internationale (“UCI”) had effective legal notice of this proceeding under applicable law and that compliance with The Hague Service Convention was not required.

3The IOC requested that the Tribunal defer consideration of this Application pending the outcome of the judicial review proceeding. By Case Assessment Direction (“CAD”) dated October 28, 2015, I sought submissions from the parties on the IOC’s deferral request.

4By letter dated November 9, 2015, the IOC reiterated its position that the Tribunal ought to defer consideration of the Application pending the outcome of the judicial review application. The IOC made clear that it was submitting its letter without acknowledgment of the Tribunal’s jurisdiction over the IOC, without attorning to the Tribunal’s jurisdiction and without prejudice to the IOC’s position in its Application. The IOC submitted that, if a hearing is to be held with the IOC as a party, it makes logical sense that the Tribunal defer its process until the judicial review application is decided. The IOC submitted that the applicant would suffer no prejudice if the matter is deferred, as it estimates that the IOC’s judicial review application may be heard in February or March 2016.

5By letter dated November 10, 2015, the applicant advised the Tribunal that she is taking no position on the deferral issue.

6By letter dated November 11, 2015, the UCI opposed the IOC’s deferral request. I note that the UCI has also reserved its rights in relation to its position that it has not been validly served with the Application materials. In its letter, the UCI noted that it, as well as the Ontario Cycling Association (“OCA”) and the Canadian Cycling Association (“CCC”), have raised a number of jurisdictional and other objections to the Application. As noted by the UCI, the Tribunal typically addresses jurisdictional objections as preliminary matters through a preliminary hearing. The UCI submitted that the IOC’s deferral request does not meet the test for a deferral/stay set out in the Tribunal’s case law. Among other things, the UCI submitted that the Tribunal should address the preliminary issues raised by the UCI, OCA and CCC at the earliest opportunity, as the resolution of these issues could conclude or fundamentally alter the scope of the Application. The UCI submitted that the IOC’s judicial review application will not have as comprehensive an impact. The UCI noted that improper service can be remedied and therefore the IOC’s judicial review may not finally dispose of the application against any or all respondents.

7Neither the OCA nor the CCC responded to the CAD and the time for doing so has passed.

Whether tribunal should defer consideration of application

8The initiation of an application for judicial review does not operate as an automatic stay of this proceeding: see Statutory Powers Procedure Act, RSO 1990, c. S.22, s. 25.

9Nevertheless, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). The decision whether to defer an application is a matter of discretion, which the Tribunal exercises on the basis of the circumstances of each case.

10I recognize that the IOC has the right to seek a stay of these proceedings from the court. However, I am not persuaded that the Tribunal ought to grant its request to defer consideration of the preliminary issues raised in this Application pending the outcome of the IOC’s judicial review application on the service issue.

11I agree with the UCI that the Application gives rise to a number of significant jurisdictional questions. In my view, it is appropriate that the Tribunal deal with these as preliminary issues. The preliminary issues differ somewhat as between the different respondents. For example, in its Response, the UCI has objected to what it has referred to as the Tribunal’s ability to adjudicate “extraterritorially”. It has also submitted that the Application against it is not based on any social area covered by the Code. The UCI, the OCA and the CCC have all submitted that the Application should be dismissed as untimely and on the basis that it stands no reasonable prospect of success under the Code. There is good reason for the Tribunal to deal with all of these issues as preliminary issues since a determination of these issues may either conclude or fundamentally alter the scope of the Application as against some or all respondents. I note that it is possible that some of the preliminary issues raised by the other respondents may also apply to the IOC. However given its decision not to participate in the proceedings before the Tribunal, at this point, the Tribunal does not have the benefit of submissions from the IOC regarding potential preliminary issues relating to them.

12Under section 41 of the Code, the Tribunal is mandated to adopt processes to facilitate the fair, just and expeditious resolution of matters before it. The Tribunal has regularly declined to defer the consideration of Applications pending the outcome of a judicial review application. See, for example, K.M. v. Kodama, 2014 HRTO 1074; Washington v. Toronto Police Services Board, 2009 HRTO 640. Although the IOC’s judicial review application may be heard in February or March 2016, any decision will not be final until all rights of appeal are exhausted. This may lead to a much longer delay of this proceeding. Such an extended delay may lead to prejudice not only to the applicant but to the other respondents, all of whom have an interest in having the Tribunal determine the preliminary issues raised by the Application as expeditiously as possible.

13For these reasons, I find that it is not appropriate for the Tribunal to defer consideration of the preliminary issues raised by the Application. I agree with the UCI that it is not necessary to determine, at this time, whether or not to continue with the merits of the Application while the judicial review application is outstanding. It may well be that a final decision will be rendered on the judicial review application before the scheduling of any hearing on the merits in this case.

14For all the reasons set out above, I find that it is not appropriate to defer consideration of the preliminary issues raised by the respondents in this Application. Accordingly, I set out a timeline and process for addressing these preliminary issues in the next section.

process and timeline for addressing preliminary issues

15Based on the materials filed by the parties, I find that the following preliminary issues should be addressed before proceeding with any consideration of the Application.

a. Does the Tribunal lack jurisdiction over any of the respondents because their alleged actions lack the necessary connection to the province of Ontario?

b. Does the Tribunal lack jurisdiction over the Application against the UCI on the basis that it is not covered by a social area protected under the Code?

c. Is the Application untimely in regards to any or all of the respondents?

d. Should the Tribunal dismiss the Application against any of the respondents on the basis that it has no reasonable prospect of success against them?

16I note that the UCI, the OCA and the CCC have all argued that the UCI Arbitral Board and/or the Canadian Center for Ethics in Sport are the competent authorities to address the allegations contained in the Application. If the respondents wish to make further submissions on this issue they may do so. However, I will note that it is established law that parties cannot contract out of the Code’s protections. Therefore, I fail to see how the Tribunal would lack jurisdiction on the basis of these alternate mechanisms to which the applicant could have, but did not, file a claim.

17The UCI, OCA and the CCC have all made submissions on the issues identified above in their Responses. The IOC has not. The applicant has not yet replied to the Responses filed by the UCI, OCA, and CCC. The timeline for the parties’ submissions is as follows:

a. Any respondent who wishes to file submissions, or further submissions, on the preliminary issues identified above must do so by December 8, 2015;

b. The applicant must file responding submissions on the preliminary issues identified above as well as a Reply to the Responses on the substance of the Application by January 12, 2016; and

c. Upon receiving the parties’ submissions, the Tribunal will determine appropriate next steps, including whether it is necessary to hear oral submissions or whether it is appropriate to render a decision based on the parties’ written submissions.

ORDER/directions

18For the reasons set out above, the Tribunal will not defer consideration of the preliminary issues raised by the Application. The Tribunal will address the preliminary issues identified in para. 15 using the process and timelines set out in paras. 16-17 above.