Florips Bajouco v. Sunnybrook Health Sciences Centre and Bronwen Morgan, 2009 HRTO 1417

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florips Bajouco

Applicant

-and-

Sunnybrook Health Sciences Centre and Bronwen Morgan

Respondent

DECISION

Adjudicator: Ena Chadha

Date: September 8, 2009

Citation: 2009 HRTO 1417

Indexed as: Bajouco v. Sunnybrook Health Sciences Centre

WRITTEN SUBMISSIONS BY

Florips Bajouco, Applicant ) On Her Own Behalf

Sunnybrook Health Science Centre ) Brian P. Smeenk, Counsel and Bronwen Morgan )

1The applicant filed an Application with the Tribunal on March 6, 2009, alleging discrimination and reprisal in employment, membership in a vocational association and goods, services and facilities on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents filed a Response on June 24, 2009. In the Response, the respondent made a Request for early dismissal of the Application on the basis that, pursuant to section 53(8) and section 45.1 of the Code, the Tribunal does not have jurisdiction to deal with the Application.

3By way of letter dated July 20, 2009, the Tribunal invited the applicant and her union, the Ontario Nurses’ Association (“ONA”), to file a response to the Request for early dismissal. On August 5, 2009, the ONA wrote to the Tribunal and advised that, as the applicant has filed a separate application against the ONA which the ONA has sought to dismiss, the ONA would not be filing any submissions in response to this Request for early dismissal.

Request to Dismiss

4In their Response and Request for early dismissal, the respondents submit that the substance of this Application was also the subject of two previous complaints filed with, and dismissed by, the Ontario Human Rights Commission (the “Commission”). The respondents provided copies of the Commission’s decisions. The respondents submit that the two previous complaints relate to the same time period and events as alleged in the current Application, and as such, should be dismissed pursuant to section 53(8) of the Code. The Commission’s decisions indicate that the human rights complaint made allegations of disability harassment and failure to accommodate by the respondents.

5The respondents further request that the Application be dismissed because the substance of this Application is the same as a previous Workplace Safety and Insurance Board complaint, a previous duty of fair representation complaint before the Ontario Labour Relations Board, and has been resolved through a grievance arbitration settlement, which was incorporated into an Order of the arbitrator.

6In her Response to the Request to Dismiss, the applicant submits that the Application should not be dismissed because she alleges that the respondents did not properly accommodate her.

DECISION

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.

8Under section 53(8) of the Code, the Tribunal lacks jurisdiction to accept an application in circumstances where the allegations contained in the application constituted the subject-matter or substantially the same subject-matter of a complaint previously filed with the Commission under the old Part IV of the Code.

9After reviewing the parties’ submissions and the accompanying documentary materials, the Tribunal finds that the current Application and the previous human rights complaints deal with the same allegations of disability discrimination, harassment and reprisal and failure to accommodate in reference to a similar period of time against the same respondent.

10The Tribunal finds that this Application is not within the jurisdiction of the Tribunal. The Tribunal is satisfied that this Application is barred under section 53(8), as its subject-matter is substantially the same as the subject-matter of the human rights complaints that the applicant filed with the Commission.

11In addition, the respondents submitted that the substance of this Application was the subject of other complaints before the Workplace Safety and Insurance Board and the Ontario Labour Relations Board, as well as a settlement of a grievance arbitration. Given the jurisdictional disposition, it is no longer necessary to determine whether these other processes “appropriately dealt with” the substance of this Application pursuant to section 45.1 of the Code.