Worley v. Ontario Cycling Association, 2016 HRTO 1246

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristen Worley

Applicant

-and-

Ontario Cycling Association, Cycling Canada Cyclisme, and Union Cycliste Internationale

Respondents

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel

Date: September 23, 2016

Citation: 2016 HRTO 1246

Indexed as: Worley v. Ontario Cycling Association

WRITTEN SUBMISSIONS

Kristen Worley, Applicant

Brenda Culbert, Counsel

1The applicant seeks reconsideration of Interim Decision, 2016 HRTO 952.

2In her Application, the applicant alleged that the respondents discriminated against her with respect to services because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

3The applicant is a cyclist who identifies as an XY female with a transitioned history. In other words, she was assigned the male sex at birth but later transitioned to being female. She alleged that she is being discriminated against by the policies of the Ontario Cycling Association ("OCA"), Cycling Canada Cyclisme ("CCC"), the Union Cycliste Internationale ("UCI"), the International Olympic Committee ("IOC") and the World Anti-Doping Agency ("WADA"). In particular, she alleged that she is being discriminated against through the imposition of allegedly discriminatory anti-doping requirements as a condition of obtaining a race license in Ontario. She also claimed that she was discriminated against as a result of the application to her of the IOC's Stockholm Consensus, which makes recommendations regarding the participation in sport of individuals who have undergone sex reassignment.

4I directed that a one-day, in-person preliminary hearing be held to determine various preliminary issues, primarily relating to the Tribunal's jurisdiction in this matter. Prior to the preliminary hearing, the parties filed extensive written submissions, relevant documents and case law. I considered all of these written materials as well as the parties' oral submissions when preparing my Interim Decision.

5Following the preliminary hearing, I issued the Interim Decision that is the subject of this Request for Reconsideration. In the Interim Decision, I denied the UCI's request to dismiss the Application as against it. I denied the respondents' request to dismiss the Application as untimely. In addition, I dismissed the Application as against the IOC and denied the applicant's request to add WADA as a respondent. I also dismissed the applicant's allegations relating to the Stockholm Consensus on the basis that they are untimely. It is these last three findings in relation to the IOC, WADA and the Stockholm Consensus that the applicant challenged in her Request for Reconsideration.

6For the reasons that follow, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 of the Tribunal's Rules of Procedure ("Rules") that would cause me to reconsider my Interim Decision.

Applicable Principles relating to reconsideration

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 ("Sigrist"), the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal's Rules:

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9The applicant relied on subsections (c) and (d) above. She submitted that certain findings in my Interim Decision are in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. She also argued that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

analysis

10Although the applicant made various interrelated arguments in her submissions, her main reconsideration submissions can be summarized as follows:

1. That the Interim Decision is in conflict with established Tribunal jurisprudence or procedure because:

   a. I failed to apply the "plain and obvious" test that the Tribunal applies when determining whether to dismiss an Application at a preliminary stage;

   b. I failed to follow established Tribunal jurisprudence by determining the jurisdictional issues in this case before the evidence was fully considered at a merits hearing; and

   c. I approached the preliminary jurisdictional issues in this case using a narrow and compartmentalized view rather than the broad and purposive approach set out in the Tribunal's case law on systemic discrimination.

2. That other factors exist that outweigh the public interest in the finality of Tribunal decisions.

11The applicant also reiterated many of the submissions that she made at the preliminary hearing. As noted above, a request for reconsideration is not an opportunity to re-argue one's case. To the extent that the applicant disagrees with any of the findings in the Interim Decision, I rely upon the reasons contained in the Interim Decision and will not repeat them in detail here. Instead, I focus below primarily on the applicant's submissions that my Interim Decision is in conflict with established jurisprudence or Tribunal procedure and/or that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

Test to be applied at preliminary stage regarding jurisdiction

12The applicant submitted that established Tribunal jurisprudence sets out the fundamental principle that an application will only be dismissed at a preliminary stage if it is "plain and obvious" that it does not fall within the Tribunal's jurisdiction. The applicant cited a number of Tribunal decisions that she said support that proposition.

13I do not agree that it is established in the Tribunal's jurisprudence that the "plain and obvious" test applies at the stage where the Tribunal has held a preliminary hearing to hear oral submissions and has received written evidence from the parties. It is important to begin by distinguishing between summary hearings and preliminary hearings since the applicant appears to use the terms interchangeably in her submissions. A summary hearing is a special type of preliminary hearing carried out under Rule 19A of the Tribunal's Rules of Procedure. The issue in a summary hearing is whether the Tribunal should dismiss an application on the basis that it has no reasonable prospect of success under the Code. By contrast, preliminary hearings (other than summary hearings) usually address jurisdictional issues including timeliness issues. Sometimes a preliminary hearing will address various preliminary issues, including the issue of whether an application should be dismissed as having no reasonable prospect of success.

14The Tribunal has repeatedly stated that, with the exception of issues in a summary hearing, preliminary matters are determined on a balance of probabilities. See, for example, King v. Ontario (Community and Social Services), 2015 HRTO 307; Babic v. Tim Hortons Ltd., 2015 HRTO 146; Wilson v. Canada Loyal Insurance Agency, 2015 HRTO 784; Cochrane v. Workplace Safety and Insurance Board, 2015 HRTO 735; Greaves v. Toronto Transit Commission, 2015 HRTO 733; Konesavarathan v. University of Western Ontario, 2016 HRTO 908; Piatowski v. General Motors of Canada Company, 2016 HRTO 551.

15As demonstrated by the cases cited by the applicant, the Tribunal applies the plain and obvious test when it is determining whether to dismiss an application at a very early stage of proceeding, usually after it has only received submissions from the applicant in response to a Notice of Intention to Dismiss ("NOID") issued by the Tribunal in accordance with Rule 13 of the Tribunal's Rules. All of the decisions cited by the applicant at footnote 3 of her submissions involve this type of situation.

16Under the Code and the Tribunal's Rules, the Tribunal must not finally dispose of an application that is within its jurisdiction without affording the parties an opportunity to make oral submissions. However, the Tribunal will dismiss an application without an oral hearing when it is "plain and obvious" that it does not have jurisdiction over the application.

17The circumstances in which the plain and obvious test is applied were described by the Tribunal in Masood v. Bruce Power, 2008 HRTO 381 ("Masood"), the first case cited by the applicant. Masood is also one of the earliest and most-cited cases dealing with the application of the plain and obvious test. As stated by the Tribunal in that decision:

Rule 13.1 of the Rules of Procedure provides that the Tribunal may dismiss an application that is outside its jurisdiction. Rules 13.2 to 13.5 provide for a process under which the Tribunal may initiate a Notice of Intent to Dismiss on the basis of jurisdiction, which occurs without the application being sent to the respondent. Under the Tribunal's jurisprudence, an application will only be dismissed at this preliminary stage if it is "plain and obvious" on the face of the application that it does not fall within provincial jurisdiction.

18Therefore, the plain and obvious test is a test applied by the Tribunal when determining whether to dismiss an application without an oral hearing because it falls outside the Tribunal's jurisdiction. The Tribunal does not have an established practice of applying the plain and obvious test once the Tribunal has conducted an oral hearing and received submissions and materials from the parties. See K.A. v. Physical and Health Education Canada, 2013 HRTO 1212 at para. 44.

19The applicant is correct to note that there exist a few Tribunal cases in which the Tribunal appears to apply the plain and obvious test even after having held a preliminary hearing. However, these cases are few as compared to the number of cases where the Tribunal has decided preliminary issues without any application of the plain and obvious test.

20The applicant relies heavily upon the Tribunal's decision in Dream Team v. Toronto (City), 2012 HRTO 25 ("Dream Team"). The preliminary issues in that case differed significantly from the preliminary issues raised in this case. In that case, the respondent requested early dismissal of the Application, among other reasons, because the allegations were vague, speculative, hypothetical and disclosed no prima facie breach of the Human Rights Code. From the perspective of nearly five years of summary hearing jurisprudence, the essence of the respondent's claim was that the Application had no reasonable prospect of success. However, it appears that the respondent did not argue it this way because the applicant had requested permission to amend the Application to add particulars.

21The Tribunal held that it was premature to consider and determine the respondent's dismissal request without a proper evidentiary foundation and full legal argument. Significantly, the Tribunal noted that it had, in some cases, granted early dismissal on the ground that the Tribunal lacked jurisdiction, or that the application as drafted was outside the scope of the Code. However, the Tribunal held that there was no requirement that the Tribunal dispose of such challenges at a preliminary stage.

22The Tribunal then stated that it will generally decline to grant early dismissal unless it is satisfied that there is a sufficient factual foundation to determine that it is "plain and obvious" that the application will not succeed. In support of this statement, the Tribunal cited two decisions where the "plain and obvious" test was applied at an early stage after the issuance of an NOID or prior to a full response being filed: Cochrane v. Workplace Safety and Insurance Board, 2009 HRTO 1596; Frankson v. Workplace Safety and Insurance Board, 2009 HRTO 2084.

23Although the Tribunal stated that it was not "plain and obvious" that the application would not succeed. This must be read in the context of the preliminary issues in that case, in which the respondent had requested an early dismissal of the application on the basis that the allegations were too vague, speculative, hypothetical and disclosed no prima facie Code violation. Ultimately, the Tribunal in Dream Team ordered the applicant to provide particulars of its allegations. Significantly, the Tribunal did not rule out determining the preliminary issues at an early stage of proceeding, although it did find that the respondent would need leave of the Tribunal to renew its request to dismiss before the conclusion of the hearing on its merits.

24I do not agree with the applicant's suggestion that the Tribunal's decision in Dream Team represents the Tribunal's established practice in regards to issues, unlike vagueness, that are properly jurisdictional in nature. As noted above, the Tribunal's established practice is to apply the plain and obvious test at a very early stage of proceeding. Once the Tribunal has held a preliminary hearing, the Tribunal's general practice is not to apply the plain and obvious test. The examples of Tribunal cases that support that proposition are too numerous to cite. However, the following decisions provide a sampling of the Tribunal's extensive case law in which it has determined jurisdictional issues following a preliminary hearing without any application of the plain and obvious test: Macanovic v. Ontario Human Rights Commission, 2011 HRTO 1; Nicholson v. Bombardier Transportation Canada Inc., 2012 HRTO 2062; Peltier v. 1243564 Ontario Limited o/a Total Scrap Management, 2015 HRTO 585; and Di Muccio v. Newmarket (Town), 2016 HRTO 406. Indeed, I note that in Knight v. A.A. World Services Inc., 2015 HRTO 1306, a decision relied upon heavily by the applicant at the preliminary hearing, the Tribunal determined the issue of jurisdiction without applying the "plain and obvious test".

25For all of the above reasons, I do not agree that my Interim Decision is in conflict with established Tribunal jurisprudence or practice because I failed to apply the "plain and obvious" test.

addressing jurisdictional issues on a preliminary basis

26The applicant submitted that the Interim Decision was in conflict with established Tribunal jurisprudence by addressing the jurisdictional issues in this case on a preliminary basis rather than after a full merits hearing. She argued that, especially where an applicant makes a claim of systemic discrimination, the Tribunal has consistently declined to dismiss applications without a full factual matrix and evidentiary record from a merits hearing.

27I do not agree that it is established Tribunal practice to decline to make jurisdictional findings without a full evidentiary record on the merits of an application, even in cases where an applicant is alleging systemic discrimination. The Tribunal must deal with applications in a fair, just and expeditious manner. It must obtain the evidence it needs in relation to jurisdictional issues while ensuring that parties are not required to incur the time and expense of a full merits hearing when the Tribunal could have appropriately dealt with the jurisdictional issues on a preliminary basis. In every case where jurisdictional issues arise, the Tribunal must determine whether a full factual matrix and evidentiary record from a merits hearing is necessary to determine the jurisdictional issues.

28The Tribunal regularly schedules preliminary hearings to deal with jurisdictional issues, including timeliness issues. In some cases, the Tribunal determines that it requires a full evidentiary record to determine the jurisdictional issues, and in other cases, it determines that it has sufficient information to decide these issues based on the materials and submissions made by the parties at the preliminary hearing. As a result, I disagree with the applicant that it is established Tribunal practice to decline to dismiss applications as outside the Tribunal's jurisdiction without a full evidentiary record from a merits hearing. Instead, the Tribunal's established practice is to determine jurisdictional issues on a preliminary basis if it is appropriate to do so. The determination of whether it is appropriate to do so in any particular case is an exercise of discretion by the Tribunal taking into account the particular circumstances of each case.

29I completely agree with the applicant that the Tribunal must be careful to appreciate the complexity and nuance usually associated with claims of systemic discrimination. I also agree that it is important not to take a narrow and compartmentalized view of such cases. However, it is equally important to clarify the scope of applications and the proper parties to an application at an early stage if that is possible.

30In her submissions, the applicant referred to the Tribunal's decision in Association of Midwives v. Ontario (Health and Long-Term Care), 2014 HRTO 1370 ("Midwives"). She relied on this decision to support her argument that the Tribunal refuses to dismiss applications with complex legal and factual issues at a preliminary stage. I do not agree that the Midwives case supports that proposition. In the Midwives case, the Tribunal ordered a preliminary hearing to determine whether certain allegations in the Application should be dismissed as untimely. At para. 41 of the decision, the Tribunal stated that there was no question as to whether it should determine, at that early stage of the proceeding, if the allegations in the Application were timely. It noted that the parties jointly requested that the Tribunal decide the question prior to conducting a merits hearing and it stated that it was prepared to do so. Accordingly, the Midwives case provides an example of the Tribunal's practice of deciding jurisdictional issues, including timeliness issues, on a preliminary basis when appropriate. The fact that the Tribunal found all of the allegations to be timely does not change the fact that it determined the timeliness issues on a preliminary basis, not after having conducted a full merits hearing.

31The same is true for two of the other decisions relied upon by the applicant: DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049, and Sharma v. Peel District School Board, 2015 HRTO 1308. In both those cases, the Tribunal addressed timeliness objections on a preliminary basis rather than waiting until having conducted a full merits hearing.

32As noted by the applicant, in other cases, such as Grange v. Toronto (City), 2014 HRTO 633 ("Grange"), and Ontario Public Services Employees Union and Liquor Control Board of Ontario, 2015 HRTO 766, the Tribunal declined to decide a timeliness objection on a preliminary basis. However, when considered in conjunction with the other decisions cited above, these cases support the conclusion that it is the Tribunal's established practice to determine jurisdictional issues on a preliminary basis if it is appropriate to do so. As noted above, the determination of whether it is appropriate to do so is an exercise of discretion by the Tribunal taking into account the particular circumstances of each case.

33For all of the above reasons, I do not agree that my Interim Decision conflicts with established Tribunal jurisprudence or procedure by deciding the jurisdictional issues in this case on a preliminary basis rather than after conducting a full merits hearing.

Alleged narrow and compartmentalized approach

34The applicant submitted that I took a narrow and compartmentalized approach in my Interim Decision rather than acknowledging, or properly taking into account, her allegations of systemic discrimination.

35I do not agree. In my view, what the applicant sees as a narrow and compartmentalized approach arises primarily from the fact that she advanced her discrimination claims with a tribunal whose jurisdiction is limited to Ontario. As fully discussed in the Interim Decision, the Tribunal's jurisdiction is limited to Ontario. This inevitably leads to some limitations in the Tribunal's authority to address the applicant's wide-ranging allegations.

36In her submissions, the applicant relied heavily upon the Midwives and Grange decisions. It should be noted that neither of those cases involved multiple organizational respondents, including respondents that are not located in Ontario. Second, the jurisdictional issues in those cases were limited to timeliness issues and more specifically whether the allegations in the applications formed part of a "series of incidents" within the meaning of s. 34 of the Code. Third, neither the Midwives nor Grange cases involved a seven-year gap between incidents that were alleged to form part of a series of incidents, as is the case in this Application.

37I am not persuaded that my approach to this case or the determinations in my Interim Decision conflict with the Tribunal's established jurisprudence or procedure relating to the issue of timeliness or any of the other jurisdictional issues dealt with in the Interim Decision. On the issue of timeliness in particular, I applied the same test that the Tribunal has applied in numerous cases, which includes the finding that a break of a year or more between incidents may interrupt a series of incidents. The break between the applicant's allegations regarding the Stockholm Consensus and her allegations regarding the denial of a race license was approximately seven years. My finding that this significant gap in time interrupted the alleged "series of incidents" is consistent with the Tribunal's established case law on the interpretation of a "series of incidents".

38The applicant took issue with the fact I cited Savage v. Toronto Transit Commission, 2010 HRTO 1360, in support of the principle that a gap of a year or more may break a series of incidents. The applicant pointed out that Savage did not involve allegations of systemic discrimination. According to the applicant, it was decided before the evolution of the Tribunal's jurisprudence on timeliness in systemic discrimination cases.

39Savage is one of the most cited and applied decisions to support the proposition that a gap of a year or more between incidents may interrupt a series of incidents. Although the applicant referred to what she sees as an evolution of the Tribunal's jurisprudence on timeliness in systemic discrimination cases, in my view the Tribunal has always been attuned to the subtleties that are involved in cases of systemic discrimination. However, the Tribunal has also held in several cases that an assertion that the allegedly discriminatory incidents were the product of systemic discrimination is not enough to create a connection between incidents that would not otherwise be considered a series for the purposes of s. 34(1)(b) of the Code. This is particularly the case where there is a significant gap of time between incidents. See AlSaigh v. University of Ottawa, 2012 HRTO 2.

40For all the above reasons, I do not agree that I took a narrow and compartmentalized view of the applicant's allegations. I am also not persuaded that my approach to the jurisdictional issues, including the timeliness issues, was in conflict with established Tribunal jurisprudence.

Other factors that outweigh finality

41The applicant submitted that I should reconsider the Interim Decision because it creates confusion as to the appropriate test to be applied when an application is subject to a summary hearing and a potential early dismissal prior to a merits hearing. I do not agree. As noted above, a summary hearing is different from a preliminary hearing on jurisdictional issues. The test on a summary hearing is clear: whether an application should be dismissed because it stands no reasonable prospect of success. In terms of the analysis applicable to preliminary hearings, for the reasons set out above, I do not agree that my Interim Decision conflicts with established Tribunal jurisprudence. Accordingly, I do not agree that it creates confusion as to the approach that should be taken to requests to dismiss applications on a preliminary basis.

42The applicant also submitted that the importance of the issues raised in the application is a factor that outweighs the finality of the Interim Decision. I certainly agree with the applicant that the issues raised in the Application are important. However, the importance of issues is not a reason to reconsider a decision unless the Tribunal is satisfied that factors exist that weigh in favour of reconsidering the decision. The applicant has not persuaded me that any such factors exist. To the extent that the applicant is concerned about the impact of the Interim Decision on other decisions, I would point out that the circumstances of this case are unique and my findings are linked specifically to the facts of this case. In my view, the unique context of this case minimizes its precedential value for other cases.

43For these reasons, I am not persuaded that there exist other factors that outweigh the public interest in the finality of Tribunal decisions.

Applicant's disagreement with findings

44In her submissions, the applicant disagreed with a number of the findings contained in the Interim Decision. As noted above, a reconsideration request is not an opportunity to re-argue one's case. I rely upon the reasons provided in my Interim Decision to support all of my findings in that decision. However, I do find that some of the applicant's submissions require a specific response.

Decision about Territorial Jurisdiction over the IOC and WADA

45The applicant's main submission in relation to the IOC in her Request for Reconsideration was the same as the submissions she made at the preliminary hearing. She submitted that the IOC is inextricably connected to all other respondents and, for this reason, the Tribunal has jurisdiction over it in this case. I do not agree. In my view, each respondent must be examined separately to determine whether the Tribunal has jurisdiction over that particular respondent.

46As I noted in the Interim Decision, the IOC sets international policies of general application – that is, international policies that apply the world over. One of these policies is the World Anti-Doping Code which applies internationally. For the reasons set out in my Interim Decision, I found that the connection between the IOC's policies and Ontario was too remote for this Tribunal to have territorial jurisdiction over the Application as it relates to the IOC or WADA in the circumstances of this case.

47On the issue of remedy, the applicant claims that I suggested that the applicant's remedial request is relevant to the issue of jurisdiction. In fact, I specifically stated the opposite when I noted that "the scope of the Tribunal's remedial authority is a remedial issue and not a jurisdictional one" (para. 102). Instead, I noted that it was "instructive" that the applicant had sought remedies that did not fall within this Tribunal's jurisdiction to order. In my view, the broad scope of the applicant's remedial request appeared to suggest a failure to take into account the limits of the Tribunal's territorial jurisdiction.

Decision about lack of services by IOC and WADA

48In my view, it is important to be clear about what the service is that is being provided in this case. At all times in this case, the applicant argued that the service at issue was the provision of a race license. I agreed with her on this point. In her Request for Reconsideration, the applicant submitted that the IOC was in a service relationship with her because it was ultimately responsible for the anti-doping requirements that affect her when imposed by the other respondents. She argued that both the IOC and WADA are in a service relationship with her because they mandate that the UCI comply with the World Anti-Doping Code. The act of mandating an allegedly discriminatory requirement is not the service in this case. The service at issue in this case is the provision of a race license to the applicant. For all the reasons detailed in the Interim Decision, I do not agree that the IOC and WADA are in a service relationship with the applicant in relation to the race license.

49The applicant claimed that my analysis hinged on the level of control exerted by the UCI in imposing the standards at issue. To be specific, in the Interim Decision, I found that the UCI "extensively regulates the race licensing process and the requirements imposed as a condition of receiving race licenses". At para. 63, I listed seven factors that demonstrated this extensive regulation by the UCI. I found that the IOC and WADA did not engage in the same degree of detailed regulation over the licensing process, but instead set policies that member federations must comply with as a condition of membership.

50In her Request for Reconsideration, the applicant sought to rely upon two decisions to submit that the administration or process of imposing a policy, or the development or creation of a policy, may be a "service" within the meaning of the Code. The two decisions she relied upon are Lauzon v. Ontario Provincial Police, 2011 HRTO 1404 ("Lauzon") and Zaromitidis v. Toronto Police Services Board, 2014 HRTO 1296 ("Zaromitidis"). In both decisions, the applicants had characterized their applications as being with respect to employment and the respondent Ministry characterized the relationship as being one of services. In both decisions, the Tribunal held that it was not necessary for the Tribunal to determine whether the relationship between the Ministry and the applicant was characterized as services or employment since the same analysis would apply in either case. (See Lauzon at para. 84 and Zaromitidis at paras. 52-53). In fact, I note that, in Lauzon, the Tribunal noted that it was inclined to agree with the applicant that the proper characterization of the Application as being with respect to employment (para. 84).

51For these reasons, these decisions would not lead me to reconsider my analysis regarding the IOC or WADA in this case.

Dismissal of Allegations re Stockholm Consensus

52I already addressed the applicant's submissions in relation to the dismissal of her allegations regarding the Stockholm Consensus above at paras. 36-40.

order

53For the reasons set out above, the applicant's Request for Reconsideration is denied.