HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Abbas Sadaghyani
Applicant
-and-
Kingston General Hospital, Cathy Shaw, Gary Bedford and Ontario Public Service Employees Union
Respondents
INTERIM DECISION
Adjudicator: Sherry Liang
Date: November 19, 2008
Citation: 2008 HRTO 286
Indexed as: Sadaghyani v. Kingston General Hospital
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
INTRODUCTION
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 September 4, 2008. The Application alleges discrimination in employment on the grounds of race, place of origin, creed and age.
2This interim decision deals with requests by the respondents to dismiss the Application on the basis of a prior complaint filed with the Ontario Human Rights Commission (“Commission”).
BACKGROUND
3The applicant states that he was employed by the Kingston General Hospital between February 2003 and August 2004. He alleges he was discriminated against during his period of employment in various ways, including being denied a promotion, in scheduling, in discipline, in being harassed and in being denied workplace opportunities. The applicant indicates that he filed complaints with the Commission and the Ontario Labour Relations Board against Kingston General Hospital (KGH) and his union, the Ontario Public Service Employees’ Union, Local 444 (OPSEU), arising out of the events. The applicant also refers to a grievance filed through OPSEU, and encloses a copy of the Minutes of Settlement and Release in relation to that grievance.
4Among the terms of the Minutes of Settlement is a provision requiring the applicant to write to the Commission requesting that his complaint be withdrawn. The applicant has provided a copy of his letter to the Commission containing his request to withdraw his complaint.
5All of the respondents have filed Responses requesting early dismissal of the Application relying, among other things, on the complaint made to the Commission. They provided the Tribunal with a copy of that complaint, dated September 8, 2004. They also provided a copy of the Commission’s letter of March 14, 2005 confirming that the applicant’s complaint has been closed.
DECISION
6The respondents have raised a number of objections to the Application but the Tribunal has determined that it will deal initially with the request to dismiss based on section 53(8) of the Code.
7Section 53(8) of the Code provides:
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.
8Based on the above provision, there may be an issue about whether the applicant may file this Application. As a result, the Tribunal determines that it is appropriate to receive submissions with respect to the interpretation and application of section 53(8) of the Code and whether, in the circumstances, this Application is barred. The Tribunal will receive the submissions of the applicant initially, and then determine how to proceed. The Tribunal accordingly makes the following Order:
a. By December 10, 2008 the applicant shall deliver to the respondents and file with the Tribunal, submissions on whether the Application is barred under section 53(8) of the Code.
b. Copies of the Responses will be sent to the applicant along with this decision.
c. The name of the respondent OPSEU is amended to reflect the correct name provided by the respondent.
Dated at Toronto, this 19th day of November, 2008
“Signed By”
Sherry Liang Vice Chair