Wilson v. Canada Loyal Insurance Agency, 2015 HRTO 784

Human Rights Tribunal of Ontario

B E T W E E N:

Karen Wilson

Applicant

-and-

Canada Loyal Insurance Agency Limited and Lawrence Fuller

Respondents

INTERIM DECISION

Adjudicator: Eli Fellman

Date: June 12, 2015

Citation: 2015 HRTO 784

Indexed as: Wilson v. Canada Loyal Insurance Agency

WRITTEN SUBMISSIONS

Karen Wilson, Applicant

Self-represented

Canada Loyal Insurance Agency Limited and Lawrence Fuller, Respondents

Dana Fuller, Counsel

1This Application alleges discrimination with respect to employment because of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

Section 45.1 Issue

2In their Response (Form 2), the respondents asked the Tribunal to dismiss the Application pursuant to section 45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application. As directed by the Tribunal, the Applicant addressed this issue in her Reply (Form 3) filed with the Tribunal on June 3, 2015.

3The other legal proceeding in question is an Employment Standards Act (“ESA”) claim filed by the applicant which was ultimately resolved with a settlement signed by the parties on March 29, 2015. The ESA claim concerned the applicant’s assertion that she was constructively dismissed by the corporate respondent because she was given an insufficient amount of work, and much of the work was menial in nature. As a result, she resigned in order to take other employment.

4The Application before the Tribunal asserts that on several occasions during her employment her paycheque was given to her late. The applicant raised this issue with the personal respondent. According to the applicant, the personal respondent made inappropriate comments during their conversation and said “Karen you know that I love you”.

5The purpose of s. 45.1 of the Code is to avoid the duplication of proceedings and the re-litigation of issues that have been appropriately dealt with elsewhere. Section 45.1 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.

6Section 45.1 is considered in two parts: (1) was there another “proceeding” and (2) if so, did it “appropriately deal with” the substance of the application.

7With respect to the first issue, the Tribunal has held on a number of occasions that the ESA complaint process is considered a “proceeding” for the purposes of section 45.1 of the Code. See, for example, Henderson v. Nutech Fire Protection, 2010 HRTO 2153, Gibson v. Deplaedt Enterprises Limited, 2013 HRTO 28. The Tribunal has also found that, for the purposes of section 45.1 of the Code, a “proceeding” need not involve a hearing or an opportunity to make oral submissions and may involve a settlement. See, for example, Dunn v. Sault Ste. Marie (City), 2008 HRTO 149.

8Therefore, I am satisfied that the applicant’s ESA claim and the resulting settlement is a proceeding within the meaning of section 45.1 of the Code.

9With respect to the second issue, I find that the ESA claim and the Application do not address the same allegations. The human rights allegations contained in the Application were not raised in the ESA claim, meaning settlement of the ESA claim cannot reasonably understood to be a resolution of the Code allegations contained in the Application. Therefore, the ESA claim and the settlement did not “appropriately deal with” the substance of the Tribunal Application.

10The Application is not dismissed pursuant to section 45.1 of the Code

Summary Hearing

11However, having reviewed this Application, and the other materials filed to date, the Tribunal directs 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 all or part of it will succeed.

12Details 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.

13The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondents' adverse treatment of the applicant is based, at least in part, on the applicant’s race, gender, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.

14Where it appears that all or part of an application may have no reasonable prospect of success the Tribunal may determine it is appropriate to hold a “summary hearing” on that issue. The summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the Application and to hear argument from the parties before the Tribunal makes its decision about whether all or part of the Application has no reasonable prospect of success.

15Rule 19A of the Tribunal’s Rules of Procedure sets out specific guidelines for this type of preliminary hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected to submit documents or call witnesses to testify for the purpose of a summary hearing.

16Unlike other preliminary matters, which are determined on a balance of probabilities, the test the Tribunal applies at a summary hearing is whether an application has no reasonable prospect of success. If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed.

17There are a number of reasons why the Tribunal may decide to hold a summary hearing. In this case the Tribunal has decided to hold a summary hearing because:

a. The allegation the applicant is raising does not appear to fall under the Code. The applicant has described the personal respondent’s conduct as “inappropriate behaviour”, which is not a ground listed in the Code. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation; and

b. The reprisal section of the Code only applies to the actions of a respondent that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish the respondents reprised against her for one of these three things.

18The Registrar will schedule a half day hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the preliminary hearing. Although scheduled for a half day, not all summary hearings require a half day to complete. It will be up to the adjudicator to determine the length of the hearing and how the hearing is conducted.

19The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests available on the Tribunal’s website at http://www.sjto.gov.on.ca/hrto/.

20No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable chance of success. The applicant will generally proceed first during this summary hearing and must be prepared to address the issues discussed above.

21The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon at the summary hearing no later than 35 days after the date of this Interim Decision.