Bussey v. Cedar Range Management Inc., 2016 HRTO 1563

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Bussey

Applicant

-and-

Cedar Range Management Inc. and Glen Fahselt

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: December 5, 2016

Citation: 2016 HRTO 1563

Indexed as: Bussey v. Cedar Range Management Inc. and Glen Fahselt

WRITTEN SUBMISSIONS

Paula Bussey, Applicant

Self-represented

Cedar Range Management and Glen Fahselt, Respondents

Victor Krvgic, Representative

Introduction

1The applicant, Paula Bussey (“Ms. Bussey”) filed this Application on July 25, 2014, alleging reprisal and discrimination in accommodation because of disability, sex harassment and solicitation or advances, marital status and association with a person with a disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

2A summary hearing was held on February 17, 2016 resulting in a June 14, 2016 Interim Decision, 2016 HRTO 800 (“Interim Decision”), in which one of the consolidated Applications, 2014-19456-I was dismissed in its entirety. In this Application, the following claims were permitted to proceed to a hearing:

a. as against the respondent, Glen Fahselt, that he sexually harassed the applicant on December 12 and 20, 2013;

b. as against the respondent, Cedar Range Management Inc., that it failed to properly, or at all, investigate the applicant’s allegations that one of its employees, namely Glen Fahselt, sexually harassed the applicant, and failed to take her claims seriously.

requests for an order during proceedings

3The respondents filed a Form 10 Request for an Order During Proceedings (“RFOP”), dated September 30, 2016 requesting:

a. that the Tribunal dismiss the allegations set out in paragraph 2(a) and (b), above.

4The applicant filed her Response to a Request for an Order During Proceedings objecting to the respondents’ RFOP in which she stated that the Application should not be dismissed, primarily because a summary hearing already was held and the Tribunal determined that the allegations in paragraph 2(a) and (b), above, should proceed to a hearing.

5The applicant also filed two Form 10 Requests for an Order During Proceedings, dated October 11 and 13, 2016 requesting:

a. permission to amend her Application to include new claims of reprisal and to “reactivate” Tribunal File 2014-19456-I; and

b. that certain information in the respondents’ RFOP be excluded.

6The applicant submits the respondents have engaged in a new reprisal against her and Mr. Bussey, who was the applicant in Tribunal File 2014-19456-I, through alleged comments made by them against the applicant and her husband to the owner of a motel where the applicant and Mr. Bussey were residing.

7The respondents filed Form 11 Responses to the applicant’s Requests for an Order During Proceedings. The respondents submit that the request to “reactivate” Tribunal File 2014-19456-I is an attempt to do an end run around the Tribunal’s dismissal of this Application, and there are no grounds upon which the Tribunal can reactivate the Application.

8The respondents further submit the applicant’s request to add new claims of reprisal should be denied, based on the test in Wozenilek v. 7-Eleven, 2009 HRTO 926 (“Wozenilek”), by “taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice.” The respondents take the position that the request should be denied because it would expand the scope of this Application and cause prejudice to them, given the length of time since this proceeding began, the delays to date and the number of interim requests to which they have had to respond.

analysis and decision

Respondents’ Request to Dismiss the Application

9The respondents’ renewed request to dismiss this Application is dismissed.

10While I need not give reasons when I dismiss a request for a summary hearing, I would point out that the allegations set out in paragraph 2(a) and (b), above, are the remaining allegations after a summary hearing already was held. These allegations will proceed to a hearing as set out in Interim Decision, 2016 HRTO 800.

Applicant’s Request to Exclude Certain Information in the Respondents’ RFOP

11The request to exclude documents or evidence is premature. At this stage this information is only in the respondents’ RFOP, and at this stage does not form part of the respondents’ case.

12In due course, the Tribunal will send the parties a Notice of Hearing that will include dates upon which delivery of arguably relevant documents, and then hearing documents and witness statements, will be required. Until that occurs, the request to exclude any documents or information is premature.

Applicant’s Request to Amend her Application and to “Reactivate” 2014-19456-I

13Tribunal File 2014-19456-I was dismissed in its entirety in the Interim Decision. There is no process whereby the Tribunal can “reactivate” that Application in order to add new allegations.

14With respect to the applicant’s request to amend her Application, this Application along with Mr. Bussey’s in 2014-19456-I, was commenced in 2014 to deal with a myriad of allegations, including reprisal claims that were dismissed at the summary hearing. The applicant requests that she be permitted to include a new allegation of reprisal that in no way relates to the original allegations.

15This Application and the one in 2014-19456-I comprised hundreds of pages of narrative. The Tribunal dealt with all of the allegations at the summary hearing, and as a result circumscribed the issues before it. The Tribunal is currently scheduling this Application for a hearing.

16In considering the factors set out in Wozenilek, including the history of this matter, the fact that a summary hearing already has been held, the fact that adding the new allegation would greatly expand the scope of the hearing, and the timing of the request, the applicant’s request is denied

order

17The respondent’s request for a summary hearing with respect to the allegations in paragraph 2(a) and (b), above is denied.

18The applicant’s request to reactivate Tribunal File 2014-19456-I to add to it a new claim of reprisal is denied.

19The applicant’s request to amend her Application to include a new claim of reprisal is denied.

20The applicant’s request to exclude information or documentation included in the respondents’ RFOP is denied as premature.