Nguyen v. Ontario (Ministry of Health and Long Term Care), 2008 HRTO 139

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tai Nguyen Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long Term Care, the Ontario Labour Relations Board, the Minister of Labour, the Ontario Human Rights Commission and the Minister of the Attorney General, and the Ombudsman of Ontario, the Ontario Public Service Employees Union and Madeleine Meilleur Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: October 9, 2008 Citation: 2008 HRTO 139 Indexed as: Nguyen v. Ontario (Ministry of Health and Long Term Care)

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 326-1312 /Toll free 1-866-598-0322 Fax (416) 326-2199 / Toll free 1-866-355-6099 TTY (416) 326-2027/ Toll free 1-866-607-1240 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

1The applicant filed an application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on August 11, 2008. The material before the Tribunal raises issues about whether the Tribunal has jurisdiction over the matters raised in the application. The Tribunal has decided that it is appropriate to hold a hearing for the applicant to present oral submissions on the issues, as described below.

BACKGROUND

2The application describes events which take place over a considerable period and which, over that time, have involved a number of different organizations and individuals. For the purposes of clarity I have provided a more detailed description of the application and its supporting materials than normal.

3Eight respondents are named in the Application. The Tribunal has amended the respondents’ names for purposes of correctly identifying them in the proceeding to:

1. Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long Term Care (“MOH”);
2. The Ontario Public Service Employees Union (“OPSEU”).
3. Her Majesty the Queen in Right of Ontario as represented by the Ontario Labour Relations Board (“OLRB”);
4. Ombudsman of Ontario (Ombudsman);
5. Her Majesty the Queen in Right of Ontario as represented by the Minister of Labour (MOL);
6. Her Majesty the Queen in Right of Ontario as represented by the Ontario Human Rights Commission (the “Commission”);
7. Madeleine Meilleur, (MPP for Ottawa-Vanier).
8. Her Majesty the Queen in Right of Ontario as represented by the Minister of the Attorney General (MAG).

4The applicant alleges he was subjected to discriminatory treatment on the basis of his ethnic origin, race and colour in job competitions at the MOH in 1995 and 1996 and that the other named respondents have not appropriately responded to his subsequent efforts to resolve this complaint.

5In brief, the applicant contends that OPSEU did not appropriately represent him in his grievances(s) with the MOH, that the OLRB subsequently failed in its responsibility to find OPSEU at fault, that the Ombudsman should have found the OLRB at fault, and that the OHRC deliberately lost a number of the applicant’s letters (amongst other things) which contributed to the Commission’s later unfair decision to dismiss the applicant’s first complaint to the Commission. The applicant also complains the Minister of Labour, his MPP Madeleine Meilleur, and the Attorney General failed to take action to resolve his complaints and instead simply responded by explaining why they could not become involved or directing him to another agency.

6The applicant has submitted extensive documentation with his Application most of which consists of his correspondence with the respondents and much of it challenging either their decisions or how they have generally responded to his complaints. His materials omit copies of many of the decisions made by the respondents with regards to the applicant’s complaints, although references to, and sometimes quotes from these decisions are found in the materials.

7It appears the applicant has previously filed six complaints with the Ontario Human Rights Commission:

• one in 1998 naming the Ontario Ministry of Health as respondent; and
• five in 2005 naming MOH, OPSEU, OLRB, the Ombudsman, and the MOL as respondents.

Copies of the complaint form the applicant filed with the Commission in 1998 and four of the complaint forms the applicant filed in 2005 were provided with his Application. These complaints all focus on the applicant’s alleged discriminatory treatment in 1995 and 1996 at the MOH and the subsequent failure of each of the other respondents to appropriately respond to his efforts to resolve his initial complaint. While the applicant did not provide the Tribunal with the Commission’s formal decisions in regard to these complaints, the material indicates that the Commission decided against referring any of them to the Tribunal for a hearing.

DECISION

8In order to best achieve the Tribunal’s objective of the fair, just and expeditious resolution of disputes brought before it, it is necessary that the applicant attend a hearing to address the preliminary issues raised by the Application.

9At the hearing, the applicant should be prepared to respond to the following four preliminary issues:

1. the Application appears to be based on the same or substantially the same subject-matter as the complaints previously filed with the Commission. Section 53(8) of the Code prevents the Tribunal from considering such applications unless they fall within the exceptions of sections 53(3) or 53(5). The applicant must explain why the Tribunal has the power to consider his Application in light of this provision.
2. Section 34 of the Code requires applications to the Tribunal be made within one year of the last incident of alleged discrimination unless the applicant can show any delay was incurred in good faith and there will be no substantial prejudice to any respondent. Most of the allegations occurred in 1995 and 1996. On June 25, 2007 the applicant received a letter from the Attorney General indicating that neither the Attorney General nor his officials are permitted to become involved in or interfere with specific cases that are or have been considered by the Ontario Human Rights Commission. This appears the last alleged incident of discrimination and it falls outside the one year time limit. The applicant should be prepared to explain the apparent delay.
3. The applicant will need to explain why the Tribunal should consider his application given the numerous other proceedings (grievance arbitration, proceeding before the OLRB, complaint to the Ombudsman) the applicant has pursued to resolve his concerns and why these proceedings did not appropriately deal with the substance of his complaint in accordance with section 45.1 of the Code.
4. The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in services or employment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. The Tribunal does not have a general power of inquiry. The applicant has failed to identify how OPSEU, the OLRB, the Ombudsman, the MOL, the Commission, Madeleine Meilleur or the MAG have discriminated against him based on his ethnic origin, race or colour or any other ground under the Code. The applicant will need to explain how his allegations against those respondents are matters within the Tribunal’s power to decide.

10The applicant, who I note has been unrepresented in his prior dealings with the respondents, may wish to consult the Applicant’s Guide, available on the Tribunal’s website or from the Registrar’s office, for assistance in preparing for the hearing. The Guide, at pages 2-3, also provides a list of resources available to applicants appearing before the Tribunal.

11The Registrar will contact the applicant to schedule a hearing on the preliminary issues identified in this decision. A notice of hearing will be issued to the applicant and all respondents.

ORDER

12The Tribunal orders as follows:

1. The applicant is directed to provide the Tribunal with copies of the decisions issues in the grievance(s) filed with OPSEU, the decisions of the OLRB, the Ombudsman’s response to his complaint, the Commission’s decisions on his six complaints, and copies of the correspondence received from the MOL, Madeleine Meilleur, and the MAG, that are in his possession within 20 days of the date of this decision;
2. The applicant may provide written submissions to the Tribunal in advance of the hearing on the preliminary issues identified in this decision and/or provide further documents if he wishes to do so. Any submissions or documents must be filed with the Tribunal at least 20 days before the hearing date. Copies must also be delivered to all respondents;
3. A copy of this decision will be sent to all respondents along with the applicant’s Application. The respondents are not required to file a response to the Application at this time. Any respondent may make written submissions on the preliminary issues identified above by delivering a copy to the applicant and all other respondents and filing them with the Tribunal at least 30 days before the hearing. If a respondent wishes to participate in the oral hearing it is to advise the Registrar as soon as possible and, in any event, within 10 days of the date of this decision.

13I am not seized.