Florips Bajouco v. Ontario Nurses’ Association and Mark Miller, 2009 HRTO 1418

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florips Bajouco Applicant

-and-

Ontario Nurses’ Association and Mark Miller Respondents

DECISION

Adjudicator: Ena Chadha Date: September 8, 2009 Citation: 2009 HRTO 1418 Indexed as: Bajouco v. Ontario Nurses’ Association

WRITTEN SUBMISSIONS BY

Florips Bajouco, Applicant ) On Her Own Behalf Ontario Nurses’ Association ) Kate Hughes, Counsel and Mark Miller )

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”).

2On June 10, 2009, the respondents filed a Response and a Request for Order seeking early dismissal of the Application.

Request to Dismiss

3In their Response and Request for Order, the respondents seek that the Tribunal dismiss the Application because another proceeding has wholly or in part appropriately dealt with the substance of the Application. The respondents request that the Application be dismissed on because the substance of this Application is the same as a previous duty of fair representation (“DFOR”) complaint made to the Ontario Labour Relations Board in 2005 which resulted in a settlement.

4In addition, the respondents submit that the substance of this Application was also the subject of a previous complaint filed with, and dismissed by, the Ontario Human Rights Commission (the “Commission”). The respondents provided copies of the complaint, investigation report, parties’ submissions and Commission decisions. The respondents indicate that on January 29, 2008, after conducting an investigation, the Commission dismissed the applicant’s human rights complaint on the basis that there was insufficient evidence of unequal treatment or harassment because of disability. The Commission’s decision states there was evidence that the respondent union had provided representation to the applicant in her requests for accommodation. The Commission dismissed the applicant’s reconsideration request on August 27, 2009 because it remained of the view that there was evidence that the respondent union represented the applicant and insufficient evidence of discrimination.

5In her Response to the Request for Order, the applicant submits that the Application should not be dismissed because she has experienced on-going hardship in having the respondent union provide her with fair representation. The applicant indicates that her Application is within the Tribunal’s jurisdiction because she is disabled and has experienced discrimination and harassment from the respondents.

DECISION

6Section 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.

7Under 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.

8After 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.

9The 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 complaint that the applicant filed with the Commission.

10In addition, the respondents submitted that the substance of this Application was the subject of a DFOR complaint which was settled. Given the jurisdictional disposition, it is no longer necessary to determine whether this other process “appropriately dealt with” the substance of this Application pursuant to section 45.1 of the Code.

11I am not seized of this matter.