Cainamisir v. State Street Fund Services, 2015 HRTO 817

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Cainamisir

Applicant

-and-

State Street Fund Services

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 18, 2015

Citation: 2015 HRTO 817

Indexed as: Cainamisir v. State Street Fund Services

1This Application was deferred pursuant to Interim Decision, 2014 HRTO 141, pending the completion of an Employment Standards Act proceeding, specifically until the Ontario Labour Relations Board (“OLRB”) had issued its decision.

2The applicant has filed a Request for Order During Proceedings (“RFOP”) seeking to re-activate his Application. Along with his RFOP, he filed a copy of the OLRB decision.

3The respondent opposes reactivation. It submits that the Application should be dismissed as an abuse of process because the applicant signed a release, and that another proceeding, the OLRB, dealt with the substance of the Application. In the alternative, it submits that the Application should be dismissed because it is untimely.

proceeding with the application

4The Tribunal has reviewed the materials filed by the parties and there is no dispute that the OLRB process has concluded, that its decision has been rendered and that the request to re-activate the Application is timely. Therefore, I find that it is appropriate for the Tribunal to proceed with the Application and accordingly it is re-activated.

preliminary issues

5Having reviewed the file, the Tribunal has decided to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. some or all of the allegations may be untimely;

b. another proceeding has appropriately dealt with the substance of the Application; and,

c. the applicant has signed a full and final release with respect to the same subject matter of the Application, and that to proceed with hearing the Application would amount to an abuse of the Tribunal’s process.

Are Allegations Untimely?

6It appears that some of the allegations may be untimely. Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:

(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 section 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.

7Section 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.

8The parties may make submissions on whether the Application is outside the Tribunal’s jurisdiction for this reason. If the parties wish to rely on any evidence, witnesses, or case law with respect to this issue, they must deliver any additional documents, witness lists, or case law they wish the Tribunal to consider to each other and file them with the Tribunal no later than 35 days after the date of this letter. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.

Has Another proceeding appropriately dealt with the substance of the application?

9It appears that the substance of this Application has been considered and appropriately dealt with in another legal proceeding, the OLRB decision, and there is an issue of whether the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Code. Section 45.1 read as follows:

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.

10In preparing their submissions, the parties may wish to consider the decisions of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, as well as previous cases in which the Tribunal has considered the application of section 45.1, including Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and the cases cited in that decision. All decisions of the Tribunal can be accessed free of charge on the website of the Canadian Legal Information Institute at: www.canlii.org/en/on/onhrt/index.html.

11The parties may make submissions on whether the Application should be dismissed on this basis. If the parties wish to rely on any evidence, witnesses, or case law with respect to this issue, they must deliver any additional documents, witness lists, or case law they wish the Tribunal to consider to each other and file them with the Tribunal no later than 35 days after the date of this letter. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.

Would PROCEEDING WITH THE APPLICATION be AN ABUSE OF PROCESS because of the signed release?

12It appears that the Application may be an abuse of process because the parties entered into an Agreement on April 1, 2013, which included a release.

13In this regard, the parties may wish to review the Tribunal’s case law, all of which is available on the website, and which includes decisions such as: Solcan v. Kitchener (City), 2011 HRTO 2205; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151; Dickson v. General Motors of Canada Limited, 2013 HRTO 1347; and, O’Regan v. Firestone Textiles, 2010 HRTO 502.

14The parties may make submissions on whether the Application should be dismissed on this basis. If the parties wish to rely on any evidence, witnesses, or case law with respect to this issue, they must deliver any additional documents, witness lists, or case law they wish the Tribunal to consider to each other and file them with the Tribunal no later than 35 days after the date of this letter. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.

Next Steps AND DIRECTIONS

15The 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 preliminary hearings require a half day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

16If the Tribunal determines that all or a part of the Application should be dismissed for delay, because it would be an abuse of process to continue with the application in light of a signed release, or because another proceeding has appropriately dealt with the substance of the Application, it will be dismissed and the parties will receive a decision containing the reasons for the dismissal.

17The parties shall deliver to each other and file with the Tribunal copies of any further documents, witness lists, or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this Interim Decision. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.

18I am not seized with this matter.