Thursday, February 24, 2011

Ontario Human Rights Tribunal Digest - January 31-Feb 11, 2011

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


Vizcaya v. Mount Sinai Hospital

In this case, the Applicant alleged he was discriminated against on the basis of disability with respect to goods, services and facilties, contrary to the Code.

Specifically, the applicant stated that he had been removed from an after-party following a gala at the Sheraton Hotel, put on by Mount Sinai Hospital. The applicant believed that the decision to remove him, taken by a Ms. Colt of the hospital, was based on her becoming aware that he suffers from a disability, which information he alleged she had learned from a volunteer of Mount Sinai whom he had met at an earlier event. According to the Applicant, Ms. Colt had improperly inferred that his disability meant that he would cause problems at the party.

The applicant argued that his ticket for the gala, also gave him the privilege of attending the after-party. The respondent stated that his name did not appear on the guest list and this is why he was not permitted entry.

The Tribunal ultimately rejected the Applicant's claim, holding that the necessary connection between the removal and a prohibited ground of discrimination was simply not present on the facts.

The Tribunal noted that the Applicant's allegations were of a general nature, and at most, revealed that Ms. Colt may have been guilty of unfair and inappropriate treatment in denying him entry in accordance with his ticket. However, feelings of mistreatment alone without evidence that such mistreatment stems from prohibited ground under the Code does not attract the censure of the Code.

Keating v. Thompkins

In this case, the Applicant alleged brought an Application against his supervisor personally, alleging he was discriminated against in his employment by the Respondent manager on the basis of disability.

The Applicant had suffered an injury to his thumb. The applicant alleged that even though his former employer had offered him modified duties, which had been approved by the Workers Safety and Insurance Board, he had significant difficulties with performing those duties and was not permitted any further modification.

The applicant further alleged that he had been denied a salary increase because the company had a policy of not giving salary increases to employees on modified duties.

The Tribunal noted that these allegations of discrimination, while serious and perhaps meritorious, related to company policy and to company actions, not to the personal actions of the respondent plant manager. Because the plant manager had not personally, that is had not in his own dealings with the Applicant, discriminated against him, he could not be held liable under the Code for the actions of the employer, even if those actions were themselves discriminatory.


Ellis et al v. Petro Canada Inc.

In this case, the Tribunal ruled on a request for Reconsideration by the Applicant of an earlier Interim Decision made by the Tribunal regarding his application against his former employer for discrimination on the basis of disability.

Section 45.7 of the Ontario Human Rights Code provides as follows:

(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal Rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its own decision in accordance with the Rules.

While this power permits a Tribunal to reconsider an interim decision, the Tribunal noted that the power could only be exercised in relation to interim decisions that "dispose of some or all central issues in the Application", and thus, may qualify as "final decisions" for the purposes of a reconsideration request.

Since the reasons in the Interim Decision of the Applicant's matter made it clear that the decision of the Tribunal, in particular its finding on alleged discrimination against the respondent employer, was subject to change based upon the hearing of evidence from the remaining Applicants (that had not yet given evidence), the Interim Decision was not a final decision. Thus, it was not open to reconsideration.

In this case, the Applicant sought an adjournment of the hearing scheduled at the last minute on the basis that that he had recently retained new counsel and that neither party to the proceeding had complied with the rules on disclosure of documents and witness lists.

Turning to its own Practice Directions and to relevant caselaw, the Tribunal made clear that adjournments will only be granted in exceptional circumstances. Neither retaining of new counsel nor a failure on the part of the parties to exchange disclosure and witness statements are such circumstances. With respect to the latter circumstance, the Tribunal noted that an order compelling the parties to abide by their disclosure obligation is the appropriate remedy, not an adjournment.

The Tribunal emphasized that it is committed to the fair, just, and expeditous resolution of proceedings before it. As a result, unless there are truly extraordinary circumstances, such as illness of a party, witness, or representative last-minute adjournments will not be granted.

Bihari v. Holiday Retirement Corp., et al.

In this case, the applicant filed two nearly identical Applications alleging discrimination in employment on the ground of ethnic origin. The respondant filed a Request for consolidation of the two applications.

Rule 1.7(d) of the Tribunal's Rules of Procedure states that,
... in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.
In deciding whether to give effect to this provision, the Tribunal noted that three principal factors must be considered:

1. the public interest in avoiding a multiciplicity of proceeding, including considerations of expense, delay, and the convenience of the witnesses

2. the potential prjeudice to the respondents that could result from a single hearing, including the potential for confusion and the lengthening of the hearing.

3. whether there are common issues of fact or law.

Given the great similiarity between the Applications and that absence of evidence that such consolidation would result in prejudice to any person, the respondents' request was easily granted by the Tribunal.

Manning v. JP's Restaurant and Jean Paul Langis

In this case, the Tribunal considered whether to stay a proceeding against the respondents, who had recently become bankrupt. The Tribunal turned to Section 69 of the Bankruptcy and Insolvency Act. It states: creditor has any remedy against the insolvent person or the insolvent person's property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy.
On their reading of this provision, the Tribunal held that it was bound to stay the proceeding. The Application was suspended for one year, permitting the Applicant an opportunity to try and have the stay lifted or to try and take other steps to enable his Application against the respondents to proceed.

Niven v. Hudson's Bay Company

In response to an Application alleging discrimination against it, the Respondent employer in this case filed a response claiming that the applicant had signed a full and final release with respect to the issues in dispute in the Application. The Tribunal proceeded to invite submissions from the Applicant on same, setting a deadline by which the Applicant had to respond.

Since the Applicant did not respond, and the time for doing so had passed, the Tribunal deemed the applicant to have abandoned his Application.
- Robert Tanha, Toronto
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