Monday, February 07, 2011

Ontario Human Rights Tribunal Digest – January 24-28, 2011

Each week, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.


Jasavala v. Slywka

In this case, the applicant filed an application under section 34 of the Ontario Human Rights Code alleging discrimination. An accurate address for the respondent was not provied with the Application.

The Tribunal attempted to deliver the application to the respondent bust was unable to effect service. The Tribunal noted that its Rules of Procedure put the onus on the applicant to provide the Tribunal with an accurate address. It further noted that an applicant should consult the Applicant’s Guide available on its website, as it provides examples of how contact information can be found or verified.

Upon return of the envelope containing the application to the Tribunal, the Tribunal made the following order against the applicant:
a. If the applicant wishes to proceed with this application, the applicant shall, within 20 days of the date of this Interim Decision, provide a current, complete and accurate address for the respondent and explain the steps take to ensure that the address is current, complete, and accurate; and

b. If the applicant believes that any address previously provided is in fact current, complete and accurate contact information for the respondent, then the applicant shall provide the reasons for that belief, and the steps taken to verify that the address is current, complete and accurate.
The applicant did not comply with this order and did not provide the requested information within 20 days. Consequently, the Application was dismissed.

Penalosa v. Teva Canada Limited and Urmilla Singh

This case deals with a fairly common procedural issue: dismissal for delay. In this case, the applicant filed an application, alleging discrimination in employment by the respondents on the basis of disability.

The Tribunal proceeded to issue a Notice of Intent to Dismiss (NOID) since the application appeared to be outside its jurisdiction, in that it was filed more than one year after the last incident of alleged discrimination noted therein.

Section 34 of the Ontario Human Rights Code states, in part:
Application by person

34. (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. 2006, c. 30, s. 5.

Late applications
(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. 2006, c.
30, s. 5.
In its decision, the Tribunal noted that when an applicant files outside the one year time limit, it is has a duty to provide the Tribunal with an explanation as to why he or she did not pursue his rights under the Code in a timely fashion, which the applicant in this case had not done.

In response to the NOID, the applicant indicated she had misstated the date of the alleged last incident of discrimination, and that she had attempted to file the application a day earlier than the date it was deemed to be filed on, but found that the Tribunal’s offices were closed.

Given the applicant’s written submissions on this point, the Tribunal was not satisfied that it was “plain and obvious” – the legal test that is applied with respect to the delay provision contained in the Code – that the Application should be barred by virtue of the delay.

While the Tribunal decided not to dismiss the application for delay, it noted that its decision on jurisdiction was only an interim decision, not a final one.

Janssen v. Magna Qualtech Seating Systems and Tricia Montminy

In this case, the applicant filed an Application alleging discrimination against his former employer on the basis of disability fully aware that another legal proceeding, specifically an appeal under the Workplace and Safety Insurance Act, concerning the subject matter of the Application was already in progress. The respondents submitted to the Tribunal that the Application ought to be deferred pending resolution of this other legal proceeding since they were dealing with the same issues, namely the applicant’s injuries and whether he was able to work for the respondent employer during the relevant time frame.

The applicant submitted that the two proceedings dealt with different issues. The first dealt with termination of benefits by the Workplace and Safety Insurance Board, while the second dealt with termination of employment by the respondents.

In deciding whether the application should be deferred, the Tribunal turned to Rule 14.1 of its Rules of Procedure, which allows it to defer an application where it concludes that there is another legal proceeding in process dealing with the same facts or issues that could make inconsistent decisions on questions of facts or law that would be before the Tribunal. It ultimately agreed with the respondents’ position, concluding that both decisions would touch upon the same issues raising the real possibility of inconsistent decisions.

In the result, it deferred the application pending resolution of the other proceeding. Of note, however, in its reasons the Tribunal reminded the parties that the application could be brought back following conclusion of the WSIA appeal in accordance with its Rules of Procedure.


Hamilton v. American Standard, a Division of Wabco Standard Trane Co.

The applicant, a former unionized employee of the respondent, a manufacturer of steel bathtubs, alleged discrimination on the basis of disability. The applicant had commenced employment with the respondent as a unionized employee, but following a serious workplace injury he was no longer able to continue in his position, and was offered a non-unionized job as a security guard at the same rate of pay. The applicant accepted the position, and was advised that this was a salaried position outside the collective bargaining unit and therefore he would no longer be required to pay union dues.

When the manufacturing plant was shut down and the applicant’s employment was terminated by the respondent, the applicant made an application to the Tribunal, alleging that the following acts by his former employer at the time termination constituted discrimination on the basis of disability for which he deserved monetary compensation:

1. He did not receive an enhanced severance payment that was given to other employees, pursuant to the collective agreement, when the respondent’s plant was closed; and

2. He was not retained as a security guard to oversee the plant closure.

The Tribunal held that the applicant had made an informed decision to accept the new job on new terms of employment, and had worked under such terms for nearly three years. One of those terms was that for the reminder of his employment, he would no longer be a member of the bargaining unit. As a result, he was not entitled to the enhanced severance payments negotiated under the Closure Agreement in respect of unionized staff at the time of his termination; in no way could this be construed as discrimination on the basis of disability.

Likewise, the fact that the employer did not keep the applicant employed during the shut down phase was not discrimination on the ground of disability either because the guard hired was employed by an outside company. The Tribunal noted that none of the other salaried employees who were similarly situated to the applicant had been kept on during this period, hence the respondent's failure to retain the applicant could not be viewed as evidence of differential treatment on the basis of disability.
- Robert Tanha, Toronto

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