HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jacqueline Visconti
Applicant
-and-
The Great-West Life Assurance Company, London Life Insurance Company and Freedom 55 Financial
Respondents
DECISION
Adjudicator: Jay Sengupta
Indexed as: Visconti v. Great-West Life Assurance Company
Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto ON M7A 2A3 Phone (416) 326-1312 / 1-866-598-0322 / Fax (416) 326-2199 / Toll Free1-866-355-6099 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca
1This is an Application filed July 4, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges reprisal arising out of events that are the subject matter of an ongoing complaint before the Ontario Human Rights Commission (the “Commission”).
2In an Interim Decision, Visconti v. The Great-West Life Assurance Company, 2008 HRTO 99 dated September 23, 2008, the Tribunal sought submissions from the parties on the issue of whether the Application is barred by virtue of section 53(8) of the Code.
3The applicant did not provide submissions as requested. She has filed a Request for an Order deferring the Application. She indicates that it is her intention to transfer her Commission complaint to the Tribunal after December 31, 2008 under section 53(5), and then seek consolidation of both applications.
4Section 53(8) of the Code provides:
53(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.
5In her Request for an Order, the applicant makes some arguments relevant to the s. 53(8) issue. She argues her Application concerns reprisal and creation of a poisoned environment; matters that have not been brought to the Commission. She further submits that she filed the Application so as to meet the one year time limit to bring the matter before the Tribunal.
6Although she states she has not raised the new allegations in her complaint before the Commission, the applicant takes the position that the allegations of reprisal and the creation of a poisoned work environment are inextricably connected to the matters in the original complaint and that the two should be heard together. Counsel for the respondents takes the position that the Application is the same, or substantially the same, as the unresolved complaint before the Commission, but that they do not intend to make any further submissions at this time.
7On the basis of the assertions of the applicant and the respondents and the material before me, I find that the matters being raised in the Application are the same or substantially the same as the matter presently before the Commission.
8It is open to the applicant to amend her complaint at the Commission or to bring the complaint to the Tribunal under section 53(3) of the Code before December 31, 2008. While the Tribunal’s approach to s. 53(3) applications is that they be matters which are ready for resolution, it nonetheless retains the discretion to amend complaints where it is appropriate and consistent with the highly expeditious nature of the s. 53(3) process. The respondents are on notice of these additional allegations and indeed accept that they are connected to the ongoing complaint.
9Alternatively, if the complaint remains unresolved as of December 31, 2008, s. 53(5) allows the applicant to apply to bring her complaint to the Tribunal. If she chooses to proceed in this way, she may then seek to amend her complaint to add allegations of reprisal and the creation of a poisoned work environment. The Tribunal would determine any request to amend in accordance with its Rules and jurisprudence.
10What the applicant cannot do, given s. 53(8) and in the particular circumstances of this case where all parties agree the issues to be determined are inextricably linked to the subject-matter of the ongoing Commission complaint, is to make an s. 34 application. The Tribunal finds that the Application is barred under s. 53(8) of the Code.
Dated at Toronto, this 14th day of November, 2008.
“Signed By”
Jay Sengupta Vice Chair