Kenneth Hewitt v. HTS Engineering Ltd. and Brian McCullough, 2017 HRTO 1262

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Hewitt

Applicant

-and-

HTS Engineering Ltd. and Brian McCullough

Respondents

INTERIM DECISION

Adjudicator: Yasmeena Mohamed

Date: September 25, 2017

Citation: 2017 HRTO 1262

Indexed as: Hewitt v. HTS Engineering Ltd.

WRITTEN SUBMISSIONS

Kenneth Hewitt, Applicant

Self-represented

Introduction

1The applicant filed an Application on February 1, 2017 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. On July 19, 2017, the Tribunal deferred consideration of the Application pending the conclusion of a related Employment Standards Act, 2000, S.O. c. 41 (“ESA”) proceeding.

2The ESA proceeding was adjudicated and a decision was issued on August 21, 2017.

3The applicant filed a Request for an Order during Proceedings on August 24, 2017 requesting the reactivation of the Application (“request to reactivate”) in light of the conclusion of the ESA proceeding. The respondent has not responded to the applicant’s request to reactivate and the time for doing so has expired. In these circumstances, the request to reactivate the Application is granted.

4Having reviewed the file, the Human Rights Tribunal of Ontario (the “Tribunal”) has decided to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. another proceeding has appropriately dealt with the substance of the Application

Has Another proceeding appropriately dealt with the substance of the application (section 45.1 of the Code)?

5It appears that the substance of the Application has been considered and appropriately dealt with in another legal proceeding (see: ESA Decision dated August 21, 2017) and there is an issue of 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.

6In preparing their submissions on this issue, 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 cases in which the Tribunal has considered the application of s. 45.1, including Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and Levkivska v. Peel Condominium Corporation No. 231, 2016 HRTO 270. All the decisions can be accessed free of charge on the website of the Canadian Legal Information Institute at: www.canlii.org/en/.

7The 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 Interim 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.

Next Steps AND DIRECTIONS

8The 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.

9If the Tribunal determines that all or a part of the Application should be dismissed because another proceeding has appropriately dealt with the substance of the Application (in whole or in part), it will be dismissed and the parties will receive a decision containing the reasons for the dismissal.

10The 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 for this portion of the hearing no later than 35 days after the date of this Interim 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.

11I am not seized.