Keough v. The Governing Council of the Salvation Army in Canada, 2017 HRTO 1173

Denise Harris Keough

Applicant

-and-

The Governing Council of the Salvation Army in Canada

Respondent

Adjudicator: Josée Bouchard Date: September 8, 2017 Citation: 2017 HRTO 1173 Indexed as: Keough v. The Governing Council of the Salvation Army in Canada

APPEARANCES

Denise Harris Keough, Applicant

Tammy Cox Duggan, Paralegal

The Governing Council of the Salvation Army in Canada, Respondent

Carmen Francis, Counsel

Introduction

1This is an Application filed on August 11, 2016, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability and reprisal or threat of reprisal.

2The respondent is a corporate body duly incorporated in Canada and it acts on behalf of The Salvation Army ministry units in Canada. As part of its ministry, it operates The Salvation Army Lawson Ministries (“Lawson Ministries”), which is a community-based, residential program designed to support adults with dual diagnosis, including developmental disabilities and psychiatric issues. The applicant is an employee of the respondent and works at Lawson Ministries as a Residential Counsellor and Case Manager.

3On January 26, 2017, the Tribunal issued Interim Decision 2017 HRTO 115 directing a preliminary hearing to address the following:

a. there is no reasonable prospect that the Application or part of the Application will succeed;

b. it appears that another proceeding has appropriately dealt with portions of the Application;

c. it appears that the applicant may have signed a full and final release with respect to portions of the Application; and/or

d. it appears that some or all of the allegations may be untimely.

4The Tribunal held the preliminary hearing on August 31, 2017.

No reasonable prospect of success

5The issue before me for this portion of the hearing is whether the Application should proceed or whether it should be dismissed as having no reasonable prospect of success. The Tribunal’s Practice Direction on Summary Hearings states:

A summary hearing usually considers:

whether, assuming all of the allegations are true, the Application has no 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; and/or
whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

6Rule 19A.6 of the Tribunal’s Rules of Procedure states that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons.

7At the summary hearing stage, the Tribunal does not hear evidence and a finding that an Application should not be dismissed as having no reasonable prospect of success means only that the Application will continue to be processed. It is not a finding that there is a reasonable prospect of success.

8In the circumstances of this case, I will simply note that the issues raised by the applicant and respondent may only be resolved after hearing evidence in a hearing on the merits. The Tribunal’s summary hearing process is used to deal with those applications where the allegations may be legally insufficient to constitute a case to be answered. That is not the case here. In order to address the respondent’s refutation of the applicant’s allegations, a hearing on the merits must be held.

Other proceeding or full and final release

9The parties were asked to address the following:

a. It appears that portions of the Application have been considered and appropriately dealt with in another legal proceeding (see: Workplace Safety and Insurance Board claim 30007380) (“WSIB matter”) and there is an issue of whether the Application should be dismissed in part pursuant to s. 45.1 of the Code;

b. It appears that portions of the Application may be an abuse of process because the parties entered into an Agreement before the Ministry of Labour pursuant to section 112 of the Employment Standards Act, 2000, SO 2000, c. 41 (Employment Standards Claim No. 70162602) (“MOL matter”), which may have included a release.

10The parties appear to agree that the WSIB matter dealt with allegations regarding a time-theft discipline letter and the WSIB has addressed this issue. As a result of the WSIB proceeding, the disciplinary letter was removed from the applicant’s file.

11The parties also appear to agree that the MOL matter related to issues of hours of work and pay and these issues did not engage the Code.

12Consequently, I find that neither the WSIB matter nor the MOL matter have appropriately dealt with the substance of the Application or preclude the Application from continuing in the process.

Delay

13The parties also made submissions about whether some or all of the allegations may be untimely.

14 Section 34 (1) and (2) of the Code read as follows:

(1) 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.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15The Application was filed on August 11, 2016. The applicant has raised allegations that have occurred within one year preceding the filing of the Application. In light of my decision to allow the Application to proceed in the Tribunal process, I refrain from making a decision on delay at this time. This is an issue that will be best addressed at the merits hearing.

Order

16The Tribunal orders as follows:

a. The Tribunal will continue to process the Application.

b. Both parties have agreed to try mediation, so the Tribunal will proceed to schedule a mediation session.

Dated at Toronto, this 8th day of September, 2017.

“Signed by”

Josée Bouchard Vice-chair