Gagné v. Algoma University, 2009 HRTO 2000

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

René Gagné

Applicant

-and-

Algoma University, Arthur Perlini and Cheryl Reed-Elder

Respondents

INTERIM DECISION

Adjudicator: Caroline Rowan Date: November 24, 2009 Citation: 2009 HRTO 2000 Indexed as: Gagné v. Algoma University

1This is an Application filed on June 25, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant’s complaint against the Respondents was originally filed with the Ontario Human Rights Commission (the “Commission”) on June 10, 2008. In his complaint filed with the Commission, the applicant referred to events which date back to 1998 and ending in April 2008. That complaint raises allegations of discrimination based on the applicant’s sexual orientation, his ancestry and the fact that he is francophone. More specifically, the applicant complains about what he refers to as the discriminatory hiring practices of the respondent Algoma University (the “University”), and, in particular, the University’s failure to award him various full-time positions as a professor. According to the applicant, the discriminatory treatment against him intensified in the period from January 2008 to April 2008.

3In his Application filed with the Tribunal in 2009, the applicant also refers to further incidents of discrimination which are alleged to have taken place in 2009. In that connection, the applicant alleges that he was denied a full-time position as a professor in 2009 as a reprisal for the complaint he filed with the Commission in 2008.

4In response to the allegations made by the applicant, the respondents have raised a number of preliminary issues, which include the following:

1. that the Tribunal is without jurisdiction to deal with the allegations raised by the applicant in respect of events which occurred in 2009 on the basis that they post-date the filing of the applicant’s human rights complaint with the Commission in 2008;
2. that the Tribunal should dismiss many of the allegations raised in the applicant’s original human rights complaint on the basis that they are untimely;
3. that the allegations which relate to the respondent, Dr. Reed-Elder, who was President of Algoma College Faculty Association (the “Association”), should be dismissed on the basis that they do not raise a prima facie case, or alternatively, on the basis that they fall outside of the jurisdiction of the Tribunal in that they are the subject of a complaint filed by the applicant against the Association at the Ontario Labour Relations Board in Board File No. 1056-08-U. In the further alternative, the respondent, Dr. Reed-Elder, submits that the Tribunal should defer considering those allegations until they are dealt with by the Ontario Labour Relations Board;
4. that the applicant be directed to particularize certain allegations raised in his complaint.

5The first preliminary issue concerning whether the applicant may pursue his allegations concerning events which occurred after the filing of the applicant’s complaint with the Commission in 2008 may be disposed of on the basis of the material filed. Rule 12.3 of the Tribunal’s Rules of Procedure for Transitional Applications under sections 53(3) and 53(5) of the Code provides as follows:

12.3 Section 53(5) Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission.

Rule 12 therefore contemplates that a section 53(5) application will be based on the subject matter of the complaint as it was when abandoned at the Commission. Section 53(5) of the Code similarly provides the complainant with the opportunity within the prescribed time period to “make an application to the Tribunal with the respect to the subject-matter of the complaint”. The Tribunal has consequently held that a section 53(5) application will, generally speaking, be limited to the subject matter of the complaint made to the Commission and that the Tribunal will only exercise its discretion to allow amendments where it is necessary to ensure the fair, just and expeditious disposition of the application.

6While the applicant relies on the Board of Inquiry decision in Odell v. Toronto Transit Commission, [2001] O.H.R.B.I.D. No. 2, in support of his position that the Tribunal may amend complaints, that decision arises from very different statutory language and is not particularly helpful in resolving the issue as it relates to an application filed under section 53(5) of the Code. In the circumstances of the present application filed under section 53(5) of the Code, I am not persuaded that it is necessary to the fair, just and expeditious disposition of the applicant’s complaint filed with the Commission in 2008 concerning the Algoma University’s hiring practices in the period prior to April 2008 to include allegations of events occurring after the filing of that complaint. In the circumstances of this case, I decline to permit the proposed amendment.

7The remaining preliminary issues including the extent, if any, to which the Tribunal may permit the applicant to rely on allegations which refer to events in excess of one year prior to the filing of his original human right complaint on June 10, 2008 will be dealt with following an oral hearing.

8Although the parties refer in their submissions to a statutory six month period for making a complaint, the Tribunal directs the parties’ attention to section 53(6) which provides that the one year time limit set in section 34(1) applies to applications filed under the transition provisions. The Tribunal will determine the timeliness issue and the other outstanding preliminary issues after entertaining the parties’ oral submissions. The parties should be prepared at that time to adduce evidence, if necessary, concerning the reasons for the applicant’s delay in filing his complaint about events which predate June 10, 2007, whether that delay may be said to have been incurred in good faith, and whether any prejudice has resulted to the respondents.

Case Assessment Directions

9The Registrar will be in touch with the parties to schedule a date for the hearing of the remaining preliminary issues.