Tingling v. College of Psychologists of Ontario, 2016 HRTO 525

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Beverley Tingling Applicant

-and-

College of Psychologists of Ontario, Catherine Yarrow, Rick Morris, and Lesia Mackanyn Respondents

INTERIM DECISION

Adjudicator: Jennifer Khurana
Date: April 22, 2016
Citation: 2016 HRTO 525
Indexed as: Tingling v College of Psychologists of Ontario

APPEARANCES

Beverley Tingling, Applicant Self-represented

College of Psychologists of Ontario, Lesia Mackanyn, Catherine Yarrow and Rick Morris, Respondents Peter Osborne and Andrew Porter, Counsel

1This Interim Decision determines the applicant’s request to reactivate her deferred Application and the respondents’ request to dismiss the Application under s.45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

REASONS

Reactivation

2The Tribunal deferred the Application in Interim Decision 2015 HRTO 933 pending the conclusion of proceedings before the Health Professions Appeal and Review Board (“HPARB”).

3The applicant filed a Request for an Order During Proceedings asking to reactivate the Application now that HRPARB process has concluded. The applicant included a copy of the HPARB order and reasons with her Request.

4The respondents object to the Request and also ask the Tribunal to dismiss the Application pursuant to s. 45.1 of the Code.

5The Request to reactivate the Application is granted. The applicant made a timely request to reactivate her Application and it would appear that the process before the HPARB is now concluded. The respondents did not oppose reactivation on any other basis. Further, for the Tribunal to consider the issue of whether the Application should be dismissed in whole or in part pursuant to s.45.1, the Application must be reactivated.

Section 45.1

6Section 45.1 states:

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.

7Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties an opportunity to make oral submissions. The Tribunal therefore directs that a half-day preliminary hearing by conference call be scheduled to hear submissions on whether the other proceeding appropriately dealt with the substance of the Application and should be dismissed pursuant to s.45.1.

8The 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. The Vice-chair will determine the length of the hearing and how the hearing is conducted.

9In 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

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 decision. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.

ORDER

11The Tribunal orders as follows:

a. This Application is reactivated; and

b. The Tribunal will schedule a half-day preliminary hearing by conference call to determine whether the Application should be dismissed in whole or in part under section 45.1 of the Code.

c. The parties shall deliver to each other and file with the Tribunal copies of any further documents, witness lists or cases they intend to rely upon at the hearing no later than 35 days after the date of this decision. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.