Salisbury v. Independent Electrical System Operator, 2016 HRTO 397

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gavin Salisbury

Applicant

-and-

Independent Electrical System Operator and Allan Rosenfeld

Respondents

A N D B E T W E E N:

Gavin Salisbury

Applicant

-and-

Independent Electrical System Operator, Ridgeway Occupational Consultants, David Chong-Tai, John Hodgkinson, Terence Young,

Allan Rosenfeld and Mathew D. Burnstein

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: March 30, 2016

Citation: 2016 HRTO 397

Indexed as: Salisbury v. Independent Electrical System Operator

1These are two related Applications under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability and reprisal.

2The purpose of this Interim Decision is to address a number of issues raised by the parties and to make directions with respect to next steps.

3In the first Application the applicant alleges discrimination in employment because of disability. Essentially the applicant alleges that the respondents have failed to accommodate his disability-related needs to the point of undue hardship. He also alleges that he experienced reprisal by, amongst other things, being required to submit medical notes for alleged medical absences. In his second Application the applicant repeats many of the allegations made in the first Application. However he also alleges that he was dismissed from employment in reprisal for having filed the first Application. He makes further allegations without particulars of discrimination or reprisal by the Ridgeway respondents.

4The respondent Independent Electrical System Operator (“IESO”) is the applicant’s employer. David Chong-Tai, John Hodgkinson and Terence Young are employees of the IESO (the IESO respondents), The respondents Ridgeway Occupational Consultants Inc., Allan Rosenfeld, and Matthew D. Burnstein (The Ridgeway respondents) provide consulting services to the IESO.

The Applicant’s Request to amend Application #1

5On or about October 22, 2014, the applicant filed a Request for Order During Proceeding (“Request”) seeking to amend the Application by the addition of a number of allegations and amending the remedy he is seeking. The IESO respondents did not oppose the Request, but took the position that the additional allegations were without merit and ought to be dismissed. The IESO respondents reserved the right to make further comment upon the amended Application. Rosenfeld did not oppose the amendments in principle, but requested that the applicant file a proposed amended Application with the new allegations clearly identified. The applicant did not ever file an amended Application.

6The applicant’s Request is granted without objection. As regards the respondent’s request for a revised, amended Application, I am not persuaded that this is necessary in all of the circumstances, given the nature of the allegations and the manner in which they are articulated in the narrative. My conclusions in this regard do not prevent any party from requesting particulars of any particular allegation at the appropriate time.

The IESO’s Requests

7In their Response to Application #2 the IESO respondents made two preliminary requests:

a. The removal of the IESO individual respondents.

b. Dismissal of all allegations in the Application that predate November 19, 2014.

8The respondents made complete submissions on these issues. The applicant made submissions on the request to remove the individual respondents but reserved the right to make further submissions on these issues. In the Delivery of Response correspondence, the Tribunal did not specifically direct the applicant to address them. If the applicant has any further submissions to make on this issue, he should do so within 7 days of the date of this Interim Decision, failing which the Tribunal will determine the issues on the basis of the material currently before it.

The Request of Allan Rosenfeld

9In their Response, the Ridgeway respondents seek the dismissal of the Application as against Allan Rosenfeld, citing section 53(8) of the Code which creates a statutory bar against filing an Application where a complaint had previously been filed with Ontario Human Rights Commission. This request is denied as it does not appear that there was ever a complaint made to the OHRC in respect of this dispute and it is unlikely that such a complaint could have been made given that this dispute arises principally in 2012, almost four years after the OHRC last received complaints of discrimination.

10However, having reviewed the Applications and other pleadings, the Tribunal directs that a summary hearing be held to determine whether all or part of both Applications #1 and #2 should be dismissed because they have no reasonable prospect of success as against the Ridgeway respondents.

11Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

12Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

13The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the grounds alleged.

14The applicant also alleges reprisal. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant could establish such intention and a link between the grounds cited and the respondents’ alleged actions. Having reviewed the materials it appears that the applicant may be unable to establish the intent required of the section or any connection between the actions of the Ridgeway respondents and his having previously raised a Code issue.

15The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will establish a link to the grounds alleged, intention to commit a reprisal and a link to the respondent’s alleged actions. No witnesses will give evidence during the summary hearing.

16If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

17A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 35 days after the date of this Interim Decision.

18The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

Other matters

19In their Response, the IESO respondents also propose that subject to a number of preliminary issues, these Applications be consolidated. The applicant addressed the issue in his Reply.

20In my view it is apparent that these Applications should be consolidated. The applicant opposes consolidation on the basis that it might cause delay. In my view the consolidation of these Applications will not have that effect and in any event any minimal delay that might occur would not justify these cases proceeding separately. Accordingly I find it appropriate that these Applications be consolidated.

21It appears that the IESO respondents and the applicant have agreed to mediation in Application #2. Subject to my other Directions in this case the matter will proceed to mediation. The Tribunal will endeavour to deal with the outstanding matters in the Applications as related to the IESO respondents prior to mediation.

Orders

22The Tribunal makes the following Orders:

a. These Applications are consolidated.

b. If the applicant wishes to make further submissions on the issues raised in the IESO respondents’ Response as set out above, he will deliver and file his submissions within 7 days of the date of this Interim Decision.

c. A Notice of Summary Hearing with respect to the Applications as they relate to the Ridgeway respondents will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 35 days after the date of this Interim Decision.

23I am not seized of this case.