Woolcock v. Kaiser Aluminum Canada, 2016 HRTO 110

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Woolcock Applicant

-and-

Kaiser Aluminum Canada Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: January 25, 2016 Citation: 2016 HRTO 110 Indexed as: Woolcock v. Kaiser Aluminum Canada

WRITTEN SUBMISSIONS

Melissa Woolcock, Applicant Stephanie Shreve, Representative

Kaiser Aluminum Canada, Respondent Daniel Leone, Counsel

1This Interim Decision addresses the applicant’s request to re-activate her deferred Application, which was filed on October 18, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By Interim Decision dated January 21, 2014, the Application was deferred pending the completion of a grievance proceeding.

2The applicant filed her a Request to re-activate her Application on December 5, 2015, advising the Tribunal that the grievance process was concluded when the arbitrator released his October 3, 2015 decision. The Tribunal reactivated the Application by Registrar’s letter on the basis that the request appeared to be unopposed. Simultaneously, the Tribunal also notified the parties that it would be setting up a preliminary hearing on whether the grievance proceeding appropriately dealt with the substance of the Application (s. 45.1).

3Counsel for the respondent wrote shortly thereafter to say that he had not been served with the Request to reactivate, and that his client opposed reactivation. The applicant’s representative acknowledged that the Request was not sent to counsel. In light of this situation, the Tribunal is rescinding the Registrar’s letter reactivating the Application and will consider the respondent’s Response to the Request to reactivate.

4The respondent opposes reactivation on the basis that the arbitrator dealt with the substance of the Application, including the harassment grievance, and that it is not “open” to the applicant to re-litigate matters before this Tribunal. The difficulty with this argument is that the Tribunal cannot exercise its power under s. 45.1 to dismiss an application that has not been reactivated.

5In light of the fact that the respondent has not opposed reactivation on any other basis, and it would appear that the grievance process is now concluded, the Tribunal grants the applicant’s request to reactivate. There 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. The Registrar’ letter setting up a preliminary hearing under s. 45.1 was premature, and it, too, should be rescinded.

6However, the Tribunal remains of the view that it is appropriate to consider the issue of whether the other proceeding appropriately dealt with the substance of the Application. As such, I direct the Registrar to schedule a preliminary hearing to determine this issue.

order

7For the reasons set out above, the Tribunal orders as follows:

a. The Registrar’s January 4, 2016 letters reactivating the Application and scheduling a preliminary hearing, are rescinded;

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

c. The Tribunal will schedule a half-day preliminary hearing by conference call to determine whether the Application should be dismissed in whole or in part under section 45.1 of the Code.