HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary Rossi
Applicant
-and-
City of Toronto Court Services Division – York Civic Centre,
Susan Garossino and Barry Randell
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Rossi v. Toronto (City)
APPEARANCES
City of Toronto Court Services Division – York Civic Centre, Susan Garossino, and Barry Randell, Respondents
Zoya Trofimenko, Counsel
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The Tribunal deferred the Application in 2013 HRTO 1467, pending the completion of the grievance process (“the proceeding”).
2This Interim Decision addresses the respondents’ requests to reactivate the deferred Application and to dismiss the Application under Rule 45.1 of the Code.
3On October 12, 2016, the respondents filed a Request for an Order During Proceedings (“RFOP”) seeking to reactivate the Application (“request to reactivate”) and requesting the dismissal of the Application (“request to dismiss”) pursuant to section 45.1 of the Code. The respondents filed a copy of the September 12, 2016 Arbitration Award between the City of Toronto and the Canadian Union of Public Employees, Local 79 in the matter of a discharge grievance filed by Maria Rossi (“the Arbitration Award”). It appears that the grievance process has concluded.
4The applicant did not respond to the request to reactivate and the time for doing so has passed.
5In the circumstances, I find that it is appropriate to reactivate the Application.
preliminary hearing
6The 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 another proceeding has appropriately dealt with the substance of the Application.
7It appears that the substance of this Application has been considered and appropriately dealt with in the Arbitration Award 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, 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.
8In 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.
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 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.
10The 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, a summary of the witness’ intended evidence must also be filed and delivered.
Order
11The Tribunal orders as follows:
a. The Application is reactivated;
b. The Tribunal will schedule a half-day preliminary hearing by conference call.
12I am not seized.
Dated at Toronto, this 14th day of November, 2016.
“Signed by”
Josée Bouchard
Vice-chair