Jordan v. Toronto Community Housing Corporation, 2009 HRTO 2102

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerald Jordan

Applicant

-and-

Toronto Community Housing Corporation and Toronto Civic Employees’ Union Local 416

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: December 3, 2009

Citation: 2009 HRTO 2102

Indexed as: Jordan v. Toronto Community Housing Corporation

1This is an Application filed on June 2, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). This Interim Decision addresses the preliminary issues raised by the respondents including scheduling a hearing to hear further submissions.

BACKGROUND

2The Application arises out of the applicant’s employment with Toronto Community Housing Corporation (TCHC). The applicant alleges that he was discriminated against on the basis of disability, record of offences and reprisal. The applicant states that he was injured 12 years ago and complains about his treatment since that time. While there is some ambiguity about the precise allegations, it appears that the applicant is complaining about four settlements involving the respondents that were reached in 1997, 2002, 2003 and 2005. In addition, the applicant refers to more recent allegations including TCHC handing out medical documentation without his consent in 2007; violating minutes of settlement by participating in a “W.S.I.B.” appeal in 2007; failing to accommodate his injury by changing his work assignment in 2008; and refusing to change his duties in 2009.

3The alleged reprisal appears to be based on two incidents. First, the applicant refers to the content of a proposed offer to settle an accommodation grievance which was contingent upon there being a resolution of all outstanding grievances and any application at the Tribunal. According to the applicant, this was tantamount to “blackmail”. Second, the applicant relies on the respondent TCHC informing him that a work refusal would result in him being sent home without pay.

4With respect to the allegation that he has been discriminated against based on a record of offences, the applicant denies that it is because of a record of offences under a federal law or provincial law, but instead refers to the history of events over the last 12 years.

5The applicant acknowledges that the facts of the Application are part of another proceeding that is now completed and references a union grievance and a proceeding at the “W.S.I.B. Tribunal”. While there are some documents included, it does not appear that the documents represent the originating documents and resulting decision, which would permit some assessment of how the facts relate to the Application.

6The applicant also states that his Application is part of another proceeding that is still in progress. He names his union, but checks off “other” as the type of proceeding and does not identify the proceeding.

7The applicant also names his union, Toronto Civic Employees’ Union, Local 416, as a respondent. He alleges that his union dealt with his complaints in bad faith and refused to arbitrate his grievances.

8A Response has been filed by TCHC. Among other things, TCHC submits that there is no basis for a finding of discrimination on the basis of reprisal or record of offences. As well, TCHC argues that the allegations date back to 1997 and are barred by the limitation period.

9Further, TCHC seeks dismissal of the Application on the basis that another proceeding has in whole or in part appropriately dealt with the substance of the Application. In this respect, TCHC refers to “various labour grievances”, but does not refer to the proceeding before the “W.S.I.B. Tribunal”. TCHC identifies eight grievances that have been filed on behalf of the applicant and outlines the status of each. The grievances span the time period, 2001 to 2009, and include allegations of harassment, failure to accommodate and other issues, which appear to relate to some degree to the allegations in the Application.

10TCHC also requests deferral pending the resolution of the two grievances which it identifies as outstanding. The first grievance claims that TCHC continuously discriminated and harassed the applicant by requesting a doctor’s note when he was only off for three days; and the second grievance relates to allegations that TCHC disclosed the applicant’s medical information without his express written consent. The former is described as having been referred to arbitration.

11A Response has been filed by the union. Among other things, the union requests dismissal of the Application on the basis that the applicant has failed to disclose a prima facie violation of the Code against the union. While the union does not take a position regarding deferral, the union states that it has four active grievances on behalf of the applicant, although it does not specify what the four grievances are about and how they may be connected to the allegations in the Application.

12The applicant has filed a Reply. While the applicant opposes the requests to dismiss and/or defer to the grievance process, it is not obviously apparent to what extent he disputes all of the information relied on by TCHC.

DECISION

Record of Offences Allegations

13Section 5 of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of record of offences, amongst other grounds. Section 10 of the Code defines record of offences as follows:

“record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

14Based on the information set out in the materials filed and the submissions made, it does not appear that the alleged actions of the respondents come within the ground of “record of offences” as covered by the Code. The applicant denies having been discriminated against because of any record of offences under either federal law or a provincial law. Accordingly it appears the Application does not disclose a claim of discrimination on the basis of record of offences and cannot proceed on this basis. Unless the applicant provides written submissions to the Tribunal and the respondents within 5 days of the date of the Interim Decision explaining why his claim should proceed on this basis the Tribunal will dismiss the allegations relating to record of offences.

Request to Dismiss/Defer

15With respect to the remaining issues, I find that it is fair, just and expeditious to schedule a hearing to hear submissions on the dismissal and deferral arguments raised by the respondents.

16While the respondents did not expressly refer to the provisions of the Code, it would appear that the submissions are, in part, requests for relief made pursuant to sections 34(1), 45 and 45.1 of the Code.

17Section 34(1) of the Code provides:

If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

a) within one year after the incident to which the application relates; or

b) if there was a series of incidents, within one year after the last incident in the series.

18Section 34(2) of the Code provides:

A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

19Section 45 of the Code provides:

The Tribunal may defer an application in accordance with the Tribunal rules.

20Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

21Rule 22 of the Tribunal’s Rules of Procedure provides:

22.1 The Tribunal may dismiss all of part of the Application where it determines, under section 45.1 of the Code, that another proceeding has appropriately dealt with the substance in part or all of an Application.

22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.

22Further reference should also be made to section 8 of the Code which prohibits reprisals or threat of reprisals:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

23At the hearing, the parties should be prepared to provide submissions and, if necessary, evidence on the following issues:

a. Should the Tribunal dismiss the Application, in whole or in part, pursuant to section 45.1 because the substance of the Application has been appropriately dealt with by the settlements or resolutions of the following grievances outlined by grievance number and description in paragraph 41 of Schedule A of the Response of TCHC: TCH-08-075 (Harassment and Discrimination); TCH-07-017 (Harassment and Discrimination); TCH-07-008 (TCHC Violated the Minutes of Settlement dated November 25, 1998); MTH-04-86 (Credit Check without the Applicant’s Consent); MTH-02-01 (Accommodation); and MTH-01-32 (Letter dated December 17, 2001).

b. Should the Tribunal defer those parts of the Application which are encompassed by any grievances that remain outstanding pending the conclusion of the grievances? This includes grievances TCH-09-007 (Continued Discrimination and Harassment) and TCH-07-009 (Disclosure of the Applicant’s Medical Information) and any other grievances that are subsequently identified pursuant to paragraph 25 below.

c. Was the Application filed within one year after the last incident of discrimination? If not, was the delay in filing the Application incurred in good faith and with no substantial prejudice to the respondent(s)?

d. Do the incidents in the Application constitute a reprisal that is covered by the Code? In particular, is the alleged settlement offer and the direction regarding a refusal to perform work duties a reprisal under the Code.

e. Do the events described in the Application raise allegations of harassment and/or discrimination on a prohibited ground covered by the Code against the Union? If not, should the Application be dismissed against the Union?

24If the parties wish to rely on any supporting material for the purposes of the hearing of these issues (including submissions, facts or case law not already provided in the Application, Responses and Reply), the parties are directed to deliver this material to each other, and the Tribunal, by no later than two weeks before the date scheduled for the hearing.

25Notwithstanding the above, the applicant and the union are specifically directed to review the list of grievances identified by the respondent in paragraph 41 of Schedule A of the Response of TCHC and provide written submissions on whether they accept or dispute the information presented in respect of each grievance listed, including the status of the grievance. In addition, the applicant and the union are directed to identify any other outstanding grievances that relate in whole or in part to the allegations in the Application. The submissions should be filed with the Tribunal within 21 days of the date of this Interim Decision and copied to the other parties in accordance with the Rules. The respondent TCHC may file any response to the foregoing within 10 days of the receipt of the submissions from the union and applicant.

26The Tribunal draws the applicant’s attention to the Applicant’s Guide, available on the Tribunal’s website or from the Registrar’s office, for assistance in preparing for the hearing. The Guide, at pages 2 – 3, provides a list of resources available to applicants appearing before the Tribunal.

27I am not seized of this matter.