Cecil Gray v. Emily Creek Woodworking Ltd., 2016 HRTO 306

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cecil Gray

Applicant

-and-

Emily Creek Woodworking Ltd.

Respondent

INTERIM DECISION

Adjudicator: Sheri Price

Date: March 8, 2016

Citation: 2016 HRTO 306

Indexed as: Gray v. Emily Creek Woodworking Ltd.

WRITTEN SUBMISSIONS

Cecil Gray, Applicant

Moira Wallace, Counsel

Emily Creek Woodworking Ltd., Respondent

William Kelly, Counsel

1This is an Application in which the applicant alleges that the respondent employer discriminated against him because of disability and age with respect to employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application is scheduled to be heard on April 18 and 19, 2016, in Toronto.

Request to dismiss for delay

2In January 2016, the respondent filed a Request for an Order during Proceedings (Form 10) seeking to have the Application dismissed on the basis of delay.

3In particular, the respondent submits that the Application, which was filed on February 20, 2015, was filed more than one year after the applicant’s last day of work with the respondent, February 18, 2014. Accordingly, the respondent submits that the Application should be dismissed pursuant to s.34(1) of the Code, which states:

If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

4In his response to the Request, the applicant submits that the last incident to which the Application relates occurred on February 21, 2014. The applicant acknowledges that the respondent sent him home on February 18, 2014 following an argument. However, the applicant denies that his employment was terminated or came to an end on that date. The applicant alleges that it was not until he spoke to the respondent by telephone on February 21, 2014 that the respondent terminated his employment, which the applicant alleges was the culmination of ongoing mistreatment that he had been experiencing in the workplace since he suffered a workplace injury in February 2013. Accordingly, the applicant submits that his February 20, 2015 application was timely.

5I note that, in its Response, the respondent pleads that there was a telephone conversation between the applicant and the respondent on February 21, 2014 during which the respondent expressed concerns regarding the applicant’s behaviour and the applicant allegedly stated that he and the respondent were “at the end of the road”, which the respondent allegedly took to mean that the applicant was resigning from his employment.

6Having reviewed the parties’ submissions, I find that the February 20, 2015 Application is timely.

7In determining whether an Application is timely under s.34(1) of the Code, the question is not whether a discriminatory incident actually occurred within the one-year period preceding the filing of the Application, but whether the applicant has alleged that a discriminatory incident occurred during that time frame.

8In this case, the applicant clearly alleges that a discriminatory incident occurred on February 21, 2014, which was within the one-year period preceding the filing of his Application. Accordingly, the February 20, 2015 Application was timely.

9The respondent’s request that the Application be dismissed on account of delay is denied and the hearing will proceed as scheduled.

10In its Request that the Application be dismissed for delay, the respondent states that the matters in dispute in the Application have been determined by the Workplace Safety and Insurance Board (“WSIB”). Any issues relating to the significance of any WSIB decision(s) for this proceeding may be raised at the hearing.

Mediation-adjudication

11At the upcoming hearing in April 2016, the Tribunal will offer the parties an opportunity to participate in the Tribunal’s mediation/adjudication process.

12Pursuant to the Tribunal’s mediation/adjudication process, the Vice-chair assigned to adjudicate the case may, with the parties’ consent, step into the role of mediator to assist the parties in exploring whether the case can be settled on mutually agreeable terms. In the event that the case is not settled through mediation, the hearing proceeds before the adjudicator, who bases his or her decision solely on the evidence and arguments presented during the hearing and not on anything said during mediation. Mediation/adjudication is a voluntary process.

13A copy of the Tribunal’s mediation/adjudication agreement is available on the Tribunal’s website. The parties may also wish to review Rule 15A of the Tribunal’s Rules of Procedure, which deals with mediation/adjudication, and which is also available online. The Vice-chair will also further explain the mediation/adjudication process at the commencement of the hearing.