HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cathie Reid on behalf of Frederick Reid
Applicant
-and-
Squash Ontario
Respondent
DECISION
Adjudicator: Jo-Anne Pickel
Date: March 25, 2015
Citation: 2015 HRTO 383
Indexed as: Reid v. Squash Ontario
APPEARANCES
Cathie Reid on behalf of Frederick Reid, Applicant
Self-represented
Squash Ontario, Respondent
Nicole Godfrey, Counsel
1The applicant is a mother who filed an Application on behalf of her son, the claimant, who is a member of the respondent organization, Squash Ontario. The applicant claimed that Squash Ontario discriminated and reprised against the claimant contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). In particular, the applicant alleged that Squash Ontario discriminated against the claimant by setting “under age 22” as the age limit for funding made available to members through a provincial funding program. The applicant submitted that the claimant was discriminated against when he did not receive funding in the 2012/13 and 2013/14 funding years due to the age limit. The claimant was 23 and 24 years old on January 1st of each of the years in question. In addition, the applicant alleged that Squash Ontario reprised against the claimant when it required him to sign an Informed Consent and Assumption of Risk Agreement in order to renew his membership. She also alleged that Squash Ontario reprised against him in the way it handled his 2014 ranking.
2At the hearing, I heard testimony from the applicant and the claimant. I also heard testimony in support of Squash Ontario from: Sherry Funston, Executive Director of Squash Ontario; Robert Brooks, Chair of Squash Ontario’s Quest for Gold Selection Committee for the years relevant to this Application; and Jamie Hickox, Performance Director of Squash Canada. Finally, I heard testimony from Scott Cooper, a Sports Consultant who works on the Quest for Gold funding program. Mr. Cooper was called as a witness by both the applicant and the respondent.
3Since the applicant was self-represented, and in order to focus the hearing on Code-related issues, I permitted the applicant to provide a statement of her evidence. I then followed up by asking her questions relating to her Code-related allegations. In her testimony, the applicant sought to raise other issues that were not Code-related such as an alleged failure by Squash Ontario to follow its policies or those of Squash Canada, alleged conflicts of interests amongst members of the Quest for Gold Selection Committee and alleged breaches of the claimant’s legitimate expectations. As I informed the parties the Tribunal’s jurisdiction is limited to the application of its governing statute, the Code. The additional issues sought to be raised by the applicant do not fall within the Tribunal’s jurisdiction. It is my understanding that these issues are the subject of a parallel court proceeding between the parties.
4It was obvious at the hearing that the claimant is committed to continuing to excel as a squash player and that the applicant is committed to doing everything she can to support him in this endeavour. While I understand that the applicant and claimant believe the age limit to be discriminatory and unfair, I find that the age limit set by Squash Ontario is not discriminatory under the Code. In addition, I find that Squash Ontario’s requirement that the claimant sign the Informed Consent and Assumption of Risk Agreement in order to renew his membership did not amount to a reprisal under the Code. Finally, I also find that the evidence presented at the hearing was insufficient to establish that Squash Ontario reprised against the claimant in the way it handled his 2014 ranking.
Parties
5The applicant filed this Application on behalf of the claimant under s. 34(5) of the Code. The claimant is a squash player who is a member of Squash Ontario.
6Squash Ontario is a not for profit organization that acts as the governing body for the sport of squash in Ontario. One of the organization’s roles is to administer external funding available to members. This Application pertains to its administration of funding available through the provincial Quest for Gold – Ontario Athlete Assistance Program (“Quest for Gold – OAAP”).
alleged age discrimination
Factual Background
Quest for Gold -- Ontario Athlete Assistance Program
7The Ontario Ministry of Tourism, Culture and Sport (“Ministry”) administers a funding program called Quest for Gold. One aspect of the Quest for Gold program is the Ontario Athlete Assistance Program. As articulated in program documents, the overarching goal of the Quest for Gold – OAAP is to improve the performance and number of Ontario athletes performing at the national and international level, thereby contributing to the improved performance of Canada at international competitions. The funding is administered through Provincial Sport Organizations (“PSOs”) and Multi-Sport Organizations (“MSOs”). Squash Ontario is a PSO for the purposes of the program. According to Quest for Gold – OAAP guidelines, each PSO is responsible for developing sports specific selection criteria for funding. Each PSO is also responsible for forming a selection committee that will apply these criteria to select athletes who will be awarded funding through the program.
8As listed in program documents, the specific objectives of Quest for Gold – OAAP are the following:
a. To help athletes continue their pursuit of athletic excellence at the highest levels of national and international competition;
b. To encourage athletes to stay in Ontario to live and train;
c. To compensate athletes for earnings lost while training; to enable athletes to successfully pursue excellence in sport while fulfilling their educational goals;
d. To increase athlete access to improved high performance coaching; and
e. To enhance training and competitive opportunities available to athletes.
9According to the program documents, the Quest for Gold – OAAP achieves its objectives by various means including the following:
Providing additional direct financial assistance (Canada Card designation) to Ontario athletes who are carded at the national level by Sport Canada;
Providing standards for the identification and support of eligible sports and eligible junior-aged Ontario athletes to be carded at the Provincial level (Ontario Card); and
Focusing support on junior-aged athletes to assist in their transition from junior to senior national and international competition.
10Financial assistance is provided to Ontario athletes through two carding designations: the Canada Card and the Ontario Card. This case concerns the age limit set by Squash Ontario for the Ontario Card designation.
11The Quest for Gold – OAAP Ontario Card Athlete Handbook contains a description of the Ontario Card which states in its relevant part as follows:
Ontario Card will provide direct financial assistance to Ontario junior-aged athletes identified by PSO/MSO’s.
12The Handbook states that “[t]he primary purpose of the Ontario Card is to provide direct financial assistance to “junior aged” athletes.
13“Junior aged athlete” is defined by the Quest for Gold – OAAP program documents as follows:
“Junior-aged” is defined as those athletes who fall within the eligible age range for the Canada Games – 11-22 years of age. (Consideration will be given to older junior-aged athletes if a PSO/MSO’s NSO [National Sport Organization] approved Long Term Athlete Development model (LTAD) identifies older athletes in the “Train to Train” and “Train to Compete” categories).
14The Athlete Selection Criteria Template issued by the Ministry describes the option made available to PSOs to apply for a variation of the 11-22 age range:
A Provincial Sport Organizations with an NSO [National Sport Organization]-approved LTAD model that identifies older athletes in the “Train to Train” and “Train to Compete” categories may apply to the Ministry for a variation to the 11-22 age range. A PSO may choose to allocate up to 30% of its carding allotment to athletes older than 22 years of age who have been identified as potential next generation national team athletes by the PSO selection process.
15Both parties called as a witness Scott Cooper, a Sport Consultant with the Ministry who works on the Quest for Gold – OAAP. Mr. Cooper testified that the purpose of the program is to provide financial support to top ranked athletes training to reach the national level. Mr. Cooper stated that the intention behind the program is to provide funding to Ontario junior athletes for 1 to 3 years to continue training and progress to the national level. The Ministry’s intention is that, once an athlete reaches the national level, they would come under auspices of Sport Canada and receive federal-level funding. The age range chosen for the Quest for Gold – OAAP is loosely based on the ages for Canada Games. It is also based on fact that the Ontario Card is targeted at athletes who are a step away from competing at the national level.
16Mr. Cooper confirmed that the Ministry does permit PSOs to allocate a maximum of 30% of their carding allotment to athletes over the age of 22 in certain circumstances. This is typically done for sports where athletes peak at an older age than is common in most sports. Some PSOs did choose to allocate some of their funding cards to athletes over the age of 22 during the 2012-13 and 2013-14 funding years. However, Mr. Cooper confirmed that Squash Ontario did not elect to allocate any of its funding cards to athletes over the age of 22 during those years.
17In order to receive funding from the Ministry, Squash Ontario has to fill out an Athlete Selection Criteria Template. Mr. Cooper testified that the Ministry sends a template form to Squash Ontario with certain sections relating to the allocation of Ontario Cards left blank. There is a portion of the template that states as follows:
Eligibility will be limited to Ontario junior-aged athletes, ages 11-22 (“junior-aged” refers to chronological age not a sport’s specific age category – only exception is for SQUASH ONTARIO’s using 30% of Ontario Card allotment for athletes older than 22 years of age who have been identified as potential next generation national team athletes by SQUASH ONTARIO’s selection process.
18While the applicant interpreted this section to mean that Squash Ontario had elected to allocate 30% of its funding allotment to athletes older than 22, the evidence in this case makes clear that Squash Ontario did not in fact avail itself of this option. The section quoted above is a section that the Ministry included in the form which is aimed at restating the fact that Squash Ontario had the option of using 30% of its Ontario Card allotment for athletes older than age 22. In other words, this section does not say that Squash Ontario did in fact avail itself of this option but just that it had the option if it wished to exercise it. As noted above, Mr. Cooper testified that Squash Ontario did not avail itself of the option of funding athletes over 22 years of age. Ms. Funston, Squash Ontario’s Executive Director also confirmed this in her testimony.
19I note also that the Quest for Gold Athlete Handbook includes the following notation:
In the event of a conflict or inconsistency, the selection criteria established by the MTCS and set out in these Guidelines and duplicated in the Athlete Handbook provided to each nominated athlete shall prevail over the selection criteria established by the PSO/MSO.
20Mr. Cooper testified that this notation was added to the manual in case a PSO or MSO published information about the Quest for Gold selection criteria that contradicted the actual criteria. In such a case, the Ministry’s criteria would prevail. He testified that this notation did not have any impact on the age criteria that could be chosen by PSOs. PSOs at all times remained free to choose age criteria that fell within the range of age options set out in the program’s materials which is described above.
Age Limit Set by Squash Ontario for Ontario Cards
21Squash is a sport in the Canada Winter Games. PSOs are typically issued the same number of Ontario Cards as the number of athletes they have competing in the Canada Games (summer or winter). For Squash Ontario, that number during the relevant years was eight. The cards must be split evenly between male and female athletes.
22Prior to the 2012-13 year, the age categories used by Squash Ontario for awarding Ontario Cards mirrored the age categories for squash players competing in the Canada Winter Games. These age categories are “Under 17” and “Under 19”.
23For the 2012-13 funding year, Squash Ontario chose to allocate 30% of its 8 cards (2 cards) to athletes under the age of 22 as at January 1, 2013. This same age limit was used for the 2013-14 funding year. The decision to allocate funding cards to athletes under the age of 22 was made by Squash Ontario’s Quest for Gold Selection Committee at a meeting on October 5, 2012.
24The minutes from the Selection Committee meeting state that the Ministry advised Squash Ontario that, by using the age categories from the Canada Winter Games (that is, under 17 and under 19), the organization was missing a group of athletes between the ages of 19 and 22.
25Both Ms. Funston, Executive Director of Squash Ontario, and Mr. Brooks, the Chair of the Selection Committee in the relevant years, provided testimony that was consistent with the minutes regarding the reasons why Squash Ontario chose to increase the age limit for funding to “under age 22” in 2012-2013. Ms. Funston testified that the Committee decided to allot 2 Ontario Cards to athletes under age of 22 as a result of an appeal that was filed with the Ministry the previous year by the father of one the organization’s members. According to Ms. Funston, the Ministry denied the appeal but advised Squash Ontario that there was a gap between the age categories it used at the time and the 11-22 age category on which the program was focused. Ms. Funston testified that it was as a result of the Ministry’s comments about the gap between age 19 and 22 that Squash Ontario increased the age limit by creating an “under 22” age category for the receipt of Ontario Cards.
26Similarly, Mr. Brooks testified that the reason the Selection Committee increased the age limit to “under 22” was to address the gap identified by the Ministry. He also testified that as athletes moved out of the under 19 category they could access federal funding through Squash Canada. The Committee did not want to reduce the number of Ontario Cards available to athletes under age 19 since these individuals were about to move to the next level of their careers. Therefore, the Committee reduced the number of Ontario Cards allotted to the under 17 category to allocate the cards to athletes under age 22.
27As for the choice of setting January 1st as the date by which an athlete had to be under 22 years of age, Ms. Funston testified that January 1st was chosen because the squash season is divided into two halves: September-December and January-May. She testified that the deadline for Squash Ontario to send the names of nominated athletes to the Ministry was January 6th or 8th. Therefore, by setting the date as January 1st, the organization could take into account the results from any tournaments held in December. Mr. Brooks provided similar testimony regarding Squash Ontario’s decision to use January 1st as the date by which athletes had to be under age 22.
28Jamie Hickox from Squash Canada testified that athletes over the age of 22 would be eligible for federal-level funding. When asked in cross-examination, how many athletes were funded by Squash Canada in the relevant years, he stated that Squash Canada provided funding to four athletes.
Claimant Denied Funding
29The applicant did not receive Quest for Gold – OAAP funding in either the 2012-13 and 2013-14 funding years because he was older than 22 as of January 1 of the relevant years. The applicant appealed the denial of funding to the Quest for Gold – OAAP Appeals Committee. His appeal was denied on the basis that Squash Ontario had completed the selection process in accordance with its approved selection criteria.
Analysis and Findings
30Under s. 1 of the Code, every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of a number of grounds including age.
31At the outset, it is important to note that the Tribunal’s role in this case is not to determine whether Squash Ontario chose the best or fairest age limit, but instead to determine whether the age limit it chose amounts to age discrimination under the Code. Age-based distinctions are not inherently discriminatory. A great many statutes and programs employ age limits or criteria to determine eligibility for benefits or other advantages such as funding. A nuanced inquiry is necessary in cases such as the present to properly assess whether an age-based distinction creates a disadvantage that actually engages the right to equal treatment under the Code in a substantive sense. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 91 (“Tranchemontagne”).
32In Tranchemontagne, the Ontario Court of Appeal held that, to establish discrimination under the Code, a claimant must demonstrate a distinction on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping: see paras. 77 to 91. While it is not necessary for an applicant to prove the perpetuation of prejudice and stereotyping as discrete elements of the discrimination test, they are indicia of discrimination: see Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 SCR 61. See also Hay v. Ontario Provincial Police, 2012 HRTO 2316 at para. 137 upheld Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858 at paras. 88-93 [“Hay”].
33There was no evidence in this case, nor was it submitted, that the age limit chosen by Squash Ontario perpetuated any kind of stereotype of members 22 or older. I am also not persuaded that the age limit perpetuated any kind of prejudice or historical disadvantage experienced by members 22 or older. Members 22 years of age and older had access to funding at the federal level. While this funding was limited, the evidence established that such funding was available to support athletes who progressed past the junior level. There was no evidence of any kind of historical social or political disadvantage against athletes 22 years old or older that was being perpetuated by the actions of Squash Ontario in this case. Therefore, the evidence did not support a claim that Squash Ontario’s age limit was discriminatory in the substantive sense.
34The applicant submitted that the under age 22 age limit chosen by Squash Ontario is discriminatory because it is arbitrary. She submitted that it was arbitrary for Squash Ontario to choose to allocate a portion of its Ontario Cards to athletes over the age of 19 but to then limit those cards to athletes who were under the age of 22 as of January 1 of each of the years at issue. She argued that all athletes above age 19, should be treated equitably. She pointed to the fact that the Quest for Gold – OAAP sets out an option whereby PSOs may seek permission to allocate funding to athletes over the age of 22. Squash Ontario did not seek to avail itself of this option. The applicant claimed that this was arbitrary and therefore discriminatory.
35Even if arbitrariness were accepted as a sign of discrimination, I do not agree that the under age 22 age limit is arbitrary.
36I do not find it arbitrary for Squash Ontario to have chosen to include an “under age 22” category for Quest for Gold – OAAP funding. The evidence admitted in this case demonstrates that the Quest for Gold – OAAP is aimed at athletes between the ages of 11 and 22. In this context, it was not arbitrary for Squash Ontario to have extended funding to include an under 22 age category for funding under the program. I accept Squash Ontario’s position that there was a rational basis for the age limit as it is reasonably connected to the age limit for “junior aged” athletes as that term is defined by the Quest for Gold – OAAP.
37I note that perfect consistency could have been achieved by extending the category to all athletes under age 23. By doing so, Squash Ontario would have captured all athletes who are 22 years of age. These athletes are considered “junior aged” athletes under the Quest for Gold – OAAP. However, I do not find that characterizing the category as “under 22” was arbitrary since this age category is reasonably consistent with the age range used by the Quest for Gold – OAAP. I note that, even if the category had been framed to include all athletes under age 23 as of January 1, 2013, the claimant would still not have qualified as he was 23 on January 1, 2013.
38The applicant submitted not only that the age range was arbitrary but that it was arbitrary for Squash Ontario to choose January 1, 2013 as the date by which an athlete had to be under age 22. The applicant argued that this date was arbitrary as it did not align with the competitive season for squash. In my view, it was open for Squash Ontario to choose a different date but I do not find that it was arbitrary for it to choose January 1st. As noted above, the deadline for Squash Ontario to send the names of nominated athletes to the Ministry falls sometime in early January. Therefore, I see nothing arbitrary in its choice of January 1st in order to ensure the inclusion of the most up to date rankings prior to the deadline for submitting names to the Ministry.
39As noted above, the applicant also submitted that it was discriminatory for Squash Ontario to not take advantage of the option in the Quest for Gold – OAAP which permits PSOs to seek permission to allocate funding to athletes over the age of 22. She argued that this was especially the case due to the relative lack of funding available at the federal level. It was certainly open to Squash Ontario to take advantage of the option to vary the Quest for Gold – OAAP 11-22 age range. However, it was not discriminatory for it to decide not to do so. In my view, it was not discriminatory for Squash Ontario to decide to stay within the age range that was the focus of the Quest for Gold – OAAP. Even though PSOs may apply for a variation of the age range in certain circumstances, they are not required to do so. Mr. Cooper testified that typically requests for the variation in the age range are made for sports where athletes peak at an older age than is common in most sports. I have no evidence before me that squash falls into that category. Moreover, as discussed above, the age ranges for the Quest for Gold – OAAP are loosely based on the age range for participation in the Canada Games. The age categories for squash at the Canada Winter Games are “under 17” and “under 19”. In this context, I find it is not discriminatory for Squash Ontario to decide not to apply for permission to grant funding to athletes older than the 11-22 age range that is the focus of the Quest for Gold – OAAP.
40For the reasons set out above, it was not discriminatory and/or arbitrary for Squash Ontario to create an “under 22” age category for the receipt of funding under the Quest for Gold – OAAP.
41Due to this conclusion, it is unnecessary for me to address the respondent’s submission that the exception for recreational clubs found in s. 20(3) of the Code applies to Squash Ontario.
Alleged reprisalS
42The applicant alleged that Squash Ontario reprised against the claimant by requiring him to sign an Informed Consent and Assumption of Risk Agreement before he could renew his membership in or around September 2013. The applicant also alleged that Squash Ontario reprised against the claimant in the way it handled his 2014 ranking.
Informed Consent and Assumption of Risk Agreement
Evidence
43The applicant testified that the claimant was required to sign an Informed Consent and Assumption of Risk Agreement (“Agreement”) when he sought to renew his membership in or around September 2013. The applicant and claimant both believed that this was the first time the claimant was required to sign the Agreement in order to renew his membership. On the advice of his mother, the claimant refused to sign the Agreement and, as a result, was not permitted to renew his membership. The applicant acknowledged that all Squash Ontario members are required to execute the Agreement when they renew their memberships. However, she believes that Squash Ontario put the Agreement in place to retaliate against the claimant for claiming that the age limits chosen by Squash Ontario are discriminatory.
44Ms. Funston confirmed that all members of Squash Ontario are required to execute the Agreement when they renew their memberships. She stated that the purpose of the Agreement is for members to waive their rights to take legal action against Squash Ontario in the event that they become injured while competing in tournaments. Ms. Funston testified that the Agreement was last updated in 2009 and that the applicant would have executed the very same Agreement when he renewed his membership in 2010, 2011 and 2012.
Analysis and Findings
45Section 8 of the Code provides, among other things, that every person has a right to claim and enforce his or her rights under the Code without reprisal or threat of reprisal for so doing. In order to succeed in a claim of reprisal under the Code, an applicant must establish that the respondent did something with the intention of retaliating against him or her for claiming or enforcing his or her rights under the Code. See Noble v. York University, 2010 HRTO 878.
46As noted above, the parties disagree as to whether the Informed Consent and Assumption of Risk Agreement was amended in or around 2012 or 2013. In my view, it does not matter whether the Agreement was amended or not. I find that it was not a reprisal for the respondent to require the claimant to sign the agreement in order to renew his membership. As conceded by the applicant, all members of Squash Ontario must sign the Agreement, not just the claimant. The applicant has advanced no evidence that could reasonably suggest that the Agreement was put in place or modified with the intention to retaliate against the claimant for alleging age discrimination.
47Having reviewed the Agreement, it is clear that by signing the Agreement members are agreeing to waive any and all claims they may have against Squash Ontario for personal injury and similar losses relating to participation in Squash Ontario programs. I understand that the applicant feared that, by signing the Agreement, the claimant would be waiving his right to file an Application against Squash Ontario under the Code. However, she is mistaken in this regard. By signing the Agreement, athletes consent to assume the risk for bodily injury or other losses incurred when competing in tournaments or taking part in other Squash Ontario events. The Agreement is clearly aimed as a liability waiver relating to these types of injuries and losses. It does not purport to require athletes to waive their right to file human rights Applications under the Code. Moreover, I note that it is well established in the case law that parties cannot contract out of the Code’s protections. Even if the Agreement did purport to require the claimant to waive his rights to file an Application under the Code (which I find it does not), such a waiver would be unenforceable as it would be an attempt to contract out of the Code’s protections.
48For the above reasons, I find that the Squash Ontario did not reprise against the applicant contrary to s. 8 of the Code when it required him to sign the Agreement in order to renew his membership. For the same reasons, I find that the requirement did not violate s. 9 of the Code.
Claimant’s 2014 Ranking
49The applicant claimed that Squash Ontario reprised against the claimant by miscalculating his 2014 rankings and failing to deal with his objection using the organization’s standard appeal process.
Evidence
50The claimant’s membership in Squash Ontario was inactive for a period of time while he refused to sign the Informed Consent and Assumption of Risk Agreement described above. The claimant contested the ranking assigned to him once he re-activated his membership in March 2014. In addition to claiming that Squash Ontario reprised against the claimant in the calculation of his ranking, the applicant testified that Ms. Funston did not address the claimant’s objections using the organization’s usual appeal policy. According to the applicant, Ms. Funston created a new appeal procedure to deal with the situation and that this amounted to a reprisal under the Code.
51Ms. Funston testified that the claimant entered a tournament in February 2014 before he reactivated his membership. According to Ms. Funston, members’ rankings are not protected if they allow their membership to lapse for a year, as the applicant did. It is Squash Ontario’s policy to use its discretion to “reinitialize” (that is, to place) a player into the rankings where the organization believes the player should be relative to other players whose membership had not been interrupted. Ms. Funston testified that when the claimant objected to his ranking she deviated from the standard appeal policy to assist the claimant in expediting the process for dealing with his objection. She asked him to put his concerns in writing and told him she would select three individuals with knowledge of rankings to determine whether the claimant’s placement in the rankings was fair. The claimant ended up charging Squash Ontario with libel, bias and retaliation and asking the organization to remove him from the rankings altogether.
Analysis and Findings
52As with the age discrimination issue, it is not my role to determine whether the claimant’s placement in the rankings was fair or appropriate. My jurisdiction with regard to this issue is to determine whether I am satisfied that Squash Ontario’s actions amounted to a reprisal under the Code. Based on the evidence before me, I cannot conclude that the actions of Squash Ontario described above were undertaken with the intention of reprising against the claimant for raising concerns regarding age discrimination. The claimant chose not to renew his membership due to unfounded concerns regarding the Informed Consent and Assumption of Risk Agreement that all members are required to sign in order to renew their membership.
53According to Squash Ontario’s policy, the organization has a discretion to determine a player’s ranking after a period when their membership was inactive. The evidence before me is insufficient to establish that Squash Ontario assigned the applicant a lower ranking in order to retaliate against him for raising concerns about age discrimination. I also cannot conclude that Ms. Funston’s suggested process for how to address the applicant’s concerns was put forward in an attempt to retaliate against the claimant for raising his age discrimination concerns. I accept as credible Ms. Funston’s evidence that she proposed the alternative procedure as a way of addressing the claimant’s concerns more quickly. There is no evidence beyond speculation on the part of the applicant to show that Ms. Funston suggested this alternative procedure as a way to retaliate against the applicant for raising his age discrimination concerns.
Applicant’s Post-Hearing Submissions
54By correspondence dated January 8, 2015, the applicant sought to make certain post-hearing submissions that she did not make at the hearing. The applicant claimed, incorrectly, that she did not have a chance to make the submissions at the hearing because the hearing extended beyond 5 PM and that I “summarily curtailed” her ability to reply to the respondent’s closing submissions.
55The respondent objected to the applicant’s closing submissions and requested a right to respond to these submissions if they were considered by the Tribunal.
56The hearing in this case did extend beyond the usual 4:30 PM end time for hearings. At around 4:30 or 5 PM, I advised the parties that if it was necessary to stay beyond 6 PM, I would have to make arrangements with the building management for the Tribunal’s hearing center. Neither party indicated that it was necessary to stay beyond 6 PM. The applicant made closing submissions and she had a full opportunity to reply to the respondent’s closing submissions. Based on the above, I am satisfied that she had a full opportunity to make submissions at the hearing. Nevertheless, I have reviewed her post-hearing submissions. In large measure these submissions are a reiteration of the submissions made in the applicant’s written materials and in her evidence at the hearing with some references to the documents she filed with the Tribunal. I have reviewed the applicant’s submissions and they do not change the conclusions set out above.
Order
57For all the reasons set out above, the Application is dismissed.
Dated at Toronto, this 25th day of March, 2015.
”Signed by”_______________________
Jo-Anne Pickel
Vice-chair