HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
James Lajoy Applicant
-and-
BlueLine Rental Inc. Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard Date: August 2, 2017 Citation: 2017 HRTO 982 Indexed as: Lajoy v. BlueLine Rental Inc.
WRITTEN SUBMISSIONS
James Lajoy, Applicant Theresa Forrest, Paralegal
BlueLine Rental Inc., Respondent Matthew Curtis, Counsel
Introduction
1The applicant filed an Application on September 26, 2013 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.
2On January 8, 2014, in 2014 HRTO 31 (“the deferral decision”), the Tribunal granted a request to defer this Application until a Workplace Safety and Insurance Board (“WSIB”) Appeals Resolution Officer (“ARO”) issued a final decision. The deferral decision noted that the Application could be further deferred following the ARO decision, if appropriate.
3In December 2014, the applicant advised the Tribunal that he had filed an appeal of the ARO decision with the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The Tribunal confirmed that in the circumstances the Application remained deferred.
4On October 27, 2015, the applicant filed a Request to Re-activate the Deferred Application (“the Request”). The applicant acknowledged that the WSIAT appeal was still ongoing but claimed that there were institutional delays in the WSIAT appeal process that justified his request to reactivate the Application.
5On December 4, 2015, in 2015 HRTO 1647, the Tribunal denied the request to re-activate because the WSIAT process had not concluded.
6On July 13, 2017, the applicant filed a Request for an Order During Proceedings requesting that the Application be re-activated as the WSIAT has issued its decision. The applicant filed Decision 2017 ONWSIAT 2004 with the request to re-activate.
7On July 27, 2017, the respondent filed a Response to a Request for an Order, opposing re-activation and requesting that the Application be dismissed pursuant to s. 45.1 of the Code submitting that another proceeding has appropriately dealt with the substance of the Application, namely Decision 2017 ONWSIAT 2004.
8This Interim Decision addresses the following:
- whether the Application should be re-activated pursuant to Rule 14 of the Tribunal’s Rules of Procedure (“Rules”); and
- whether the Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application.
Reactivation
9Rules 14.3 and 14.4 of the Rules outline the procedure by which a party may proceed with an application that has been deferred. The Rules specify that a request to proceed must be filed no later than 60 days after the conclusion of the other proceeding.
10The WSIAT issued Decision 2017 ONWSIAT 2004 on July 5, 2017 and the applicant filed his request to re-activate on July 13, 2017 within the timeline established by the Rules. The WSIAT decision is a final decision.
11In the circumstances, I find that it is appropriate to reactivate the Application.
Preliminary Hearing – s. 45.1 of the Code
12The 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 another proceeding has appropriately dealt with the substance of the Application.
13It appears that the substance of this Application has been considered and appropriately dealt with in Decision 2017 ONWSIAT 2004 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.
14In 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.
15The 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.
16The 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 letter. If any party intends to call witnesses, a summary of the witness’ intended evidence must also be filed and delivered.
Order
17The Tribunal orders as follows:
a. The Application is reactivated; b. The Tribunal will schedule a half-day preliminary hearing by conference call.
18I am not seized.
Dated at Toronto, this 2nd day of August, 2017.
“Signed By”
Josée Bouchard Vice-chair