Sutton v. Jarvis Ryan Associates, 2009 HRTO 1072

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne-Marie Sutton

Applicant

• and-

Jarvis Ryan Associates Inc., Peter Jarvis and Michael McColl

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: July 20, 2009

Citation: 2009 HRTO 1072

Indexed as: Sutton v. Jarvis Ryan Associates

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H-19, as amended, (the “Code”), on December 30, 2008, alleging discrimination and harassment in employment on the basis of sex, and sexual solicitation or advances.

2The respondents filed Responses on February 14, 2009, denying the allegations of discrimination and harassment. The respondents also filed a Request for Order requesting that the Tribunal dismiss the Application without a hearing pursuant to section 45.1 of the Code on the basis that criminal investigations have appropriately dealt with the substance of this Application. The respondents further request that the Application be dismissed on an early basis because the Tribunal lacks jurisdiction as there are no areas of Code activity made out in the Application.

3The respondents submit that the allegations contained in the Application have twice been the subject of criminal investigations that are now closed and appropriately dealt with. The respondents further submit that, since the applicant was the sole shareholder of the consulting company providing services to the organizational respondent, the applicant was not in an employment relationship with the respondents. The respondents submit that the applicant was her own employee.

4The applicant objects to the respondents’ Request to dismiss and has filed a response seeking that the Tribunal deny the respondents’ Request. The applicant submits that a closed criminal investigation does not constitute another “proceeding” that has appropriately dealt with the substance of the Application. The applicant argues that whether or not criminal charges have been pursued is distinct from a determination of whether or not the applicant’s Code rights have been violated. The applicant further submits that it would be inappropriate to dismiss the Application on an early basis without hearing evidence and legal argument about the employment or contractual relationship between the applicant and respondents.

DECISION

5I am not satisfied that a criminal investigation constitutes a “proceeding” within the meaning of section 45.1 of the Code. Also, as noted in Martinez v. Peel Police Services Board, 2008 HRTO 434, although a criminal process may involve the same parties and events, there is no indication that the criminal process will address the human rights issues and or provide human rights remedies.

6In my view, the question of whether the Application raises allegations within a Code protected social area cannot be determined at this preliminary stage. The parties contest the nature of the employment and/or contractual relationship between the applicant and the organizational respondent. This is a matter that will require an assessment of the facts and evidence, along with an interpretation of the law in the area. The respondents’ Request to dismiss the Application on the basis that it fails to raise a Code-related area is therefore denied, without prejudice to the respondents’ right to make a further request after the applicant has presented evidence at the hearing.

7The Request to dismiss is therefore denied.

8I am not seized of this matter.