Barlin Ahmed v. Extendicare West End Villa, 2016 HRTO 56

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barlin Ahmed

Applicant

-and-

Extendicare West End Villa

Respondent

-and-

Canadian Union of Public Employees

Intervenor

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: January 13, 2016

Citation: 2016 HRTO 56

Indexed as: Ahmed v. Extendicare West End Villa

WRITTEN SUBMISSIONS

Barlin Ahmed, Applicant

Self-represented

Extendicare West End Villa, Respondent

John Bruce, Counsel

Canadian Union of Public Employees

Sue Lott, Counsel

1This Interim Decision addresses the applicant’s request to re-activate her deferred Application as well as the respondent’s request to dismiss the Application pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant filed her Application on January 13, 2015. She alleges that the respondent discriminated against her contrary to the Code when it harassed her and terminated her employment. In particular, the applicant alleges that the respondent discriminated against her because of disability and failed to provide reasonable accommodations for her work-related injury.

3The applicant also filed two grievances with her union. In the grievances, she alleges that the respondent failed to accommodate her following an injury at work and terminated her employment as a result of her request for accommodation. The Application was deferred pending the conclusion of the grievances by Interim Decision dated April 23, 2015 (2015 HRTO 524).

4On November 23, 2015, the arbitrator released his decision. The arbitrator upheld the failure to accommodate grievance and dismissed the termination grievance.

5On December 29, 2015, the applicant sought reconsideration of the Interim Decision dated April 23, 2015. By Case Assessment Direction, the Tribunal accepted the request for reconsideration as a request to re-activate the Application and requested the status of the grievances.

6In response to the Case Assessment Direction, the parties provided the arbitration decision dated November 23, 2015. The respondent submits the Application should not be re-activated and should be dismissed under section 45.1 of the Code.

7Since the arbitrator has now issued his decision, I grant the applicant’s request to re-activate her Application.

8There is an issue in this case as to 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”. This issue cannot be determined in the absence of oral submissions from the parties pursuant to section 43(2) of the Code. As such, I direct that a preliminary hearing be scheduled to determine this issue.

ORDER

9For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to reactivate the Application is granted; and,

b. A preliminary hearing will be scheduled to determine whether the Application should be dismissed under section 45.1 of the Code.

Next Steps AND DIRECTIONS

10The 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.

11The 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 two weeks prior to the date of the preliminary hearing. If any party intends to call witnesses, a summary of the witness’ intended evidence must also be filed and delivered.

12In 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.