Mustari v. Coseco Insurance Company, 2016 HRTO 1075

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosanna Mustari

Applicant

And

Coseco Insurance Company, Mohammad Reza Nikkhou and Joan Melanie Tucker

Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: August 12, 2016

Citation: 2016 HRTO 1075

Indexed as: Mustari v. Coseco Insurance Company

WRITTEN SUBMISSIONS

Rosanna Mustari, Applicant

Self-represented

Coseco Insurance Company, Respondent

Shawn O’Connor, Counsel

Mohammad Reza Nikkhou, Respondent

Todd Burke and Jennifer Katsuno, Counsel

Joan Melanie Tucker, Respondent

Nada Nicola-Howorth, Counsel

1By Application filed January 2, 2015, the applicant alleges that the respondents discriminated against her in the delivery of a service on the basis of her disability, family status and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code).

2In Interim Decision 2015 HRTO 696, the Application is deferred pending the conclusion of the Financial Services Commission of Ontario (“FSCO”) proceeding.

3At the time that this Interim Decision was issued, there were proceedings before the College of Physicians and Surgeons Ontario or the College of Psychologists of Ontario that were continuing. As a result, the Tribunal ordered that should a party make a request to re-activate the Application, a further deferral pending the Colleges proceedings could be considered.

4The applicant filed a Request for Order During Proceedings (“Request”) to re-activate the Application. She indicated that the proceedings before the College of Physicians and Surgeons Ontario or the College of Psychologists of Ontario had been completed; however, she did not indicate in this Request whether the FSCO proceeding was complete. As a result, the Tribunal determined that the Application should not be re-activated: 2016 HRTO 965.

5On July 25, 2016, the applicant sent further correspondence to the Tribunal in which she indicates that the proceeding before the FSCO is also complete. A letter dated June 4, 2015 from Pace Law Firm confirms that the applicant’s FSCO application was withdrawn as the issues were settled with respondent, Coseco Insurance. As a result, the Application should be re-activated.

6There is an issue in this case as to whether the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Code, which reads 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”.

7There is also an issue of whether the Application should be dismissed in whole or in part as it has no reasonable prospect of success. As such, I direct that a preliminary/summary hearing be scheduled to determine these issues.

ORDER

8For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to reactivate the Application is granted; and,

b. A preliminary/summary hearing will be scheduled to determine whether the Application should be dismissed under section 45.1 of the Code or for having no reasonable prospect of success.

NEXT STEPS AND DIRECTIONS

9The 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 hearing. Although scheduled for a half day, not all preliminary or summary 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.

10The parties shall deliver to each other and file with the Tribunal copies of any further documents, or cases they intend to rely upon two weeks prior to the date of the preliminary hearing.

11In 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 s. 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.

12The preliminary and summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as on the Tribunal’s website at http://www.sjto.gov.on.ca/hrto/application-and-hearing-process/#step5.

13I am not seized.