Florips Bajouco v. Jeffry McMaster and Jason Bacchiochi, 2009 HRTO 2280

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florips Bajouco Applicant

-and-

Jeffry McMaster and Jason Bacchiochi Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: December 30, 2009 Citation: 2009 HRTO 2280 Indexed as: Bajouco v. McMaster

1The applicant filed an Application with the Tribunal on March 13, 2009 alleging discrimination on the basis of disability, family status, marital status and record of offences and reprisal in employment, membership in a vocational association and goods, services and facilities contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The Application also named her union, the Ontario Nurses' Association (ONA), as an entity that may be affected by this proceeding.

2On August 26, 2009, the respondents filed a Response wherein the applicant's employer, Sunnybrook Health Sciences ("Sunnybrook"), was identified as an entity that may be affected by this proceeding. The respondents also filed a Request for Order During Proceedings seeking early dismissal of the Application, as well as a request for production. The request for production seeks copies of all complaints and applications filed by the applicant against Sunnybrook, the ONA and any other party, as well as copies of any responses and decisions issued by the Tribunal regarding any such complaints and applications.

Request to Dismiss

3The respondents seek that the Tribunal dismiss the Application on the basis that the Tribunal does not have jurisdiction over the subject matter of the allegations. The respondents argue that the "goods, services and facilities" which the applicant alleges to be discriminatory, namely independent medical examinations conducted by the respondents as part of an arbitration proceeding, were services provided to the applicant's employer and union (who had jointly retained the respondents pursuant to an arbitrator's order) and the arbitrator who ordered the parties to obtain the assessments. The respondents submit the services were never provided to the applicant and, therefore, even if the allegations set out in the Application were true, the allegations do not properly fall within the social area of "goods, services and facilities". The respondents argue that "[t]he Code does not, and is not intended to, provide an avenue for individuals unhappy with the results of independent medical assessments they have undergone to attack the expert assessors and their findings, opinions and conclusions."

4In her Reply and Response to the Request, the applicant objects to the respondents' Request to dismiss. The applicant alleges that one individual respondent failed to accommodate her disability and that both respondents refused to address her concerns of confidentiality. The applicant submits that the Application should not be dismissed because "[t]he services of these doctors to the Third Parties have a direct impact on me because they offered suggestions and recommendations affecting my return to work and therefore should be classified and accepted in the social area of 'services, goods and facilities'."

5The Tribunal can only dismiss an Application at this early stage on the basis of certain specific situations, such as, the subject matter of the Application is outside of the Tribunal's jurisdiction (e.g., federal), the subject matter has already been settled, the subject matter of the Application is the same as a complaint previously filed with the Ontario Human Rights Commission, or a claim has been commenced in civil court requesting remedies based on the human rights violations alleged in the Application.

6The question of whether the Application raises allegations within a Code protected social area cannot be determined at this preliminary stage. Based on the material before me, it is not plain and obvious that there is no social area within the Tribunal's jurisdiction. In addition to citing "goods, services and facilities", the Application indicates that the applicant's allegations also involve discrimination in the areas of employment and membership in a vocational association. While the parties contest the nature of their relationship and/or the services, there appears to be common ground amongst the parties that the applicant's employment and membership in a vocational association were involved. These matters will require an assessment of the facts and evidence, along with an interpretation of the law in the area, in order to determine whether the allegations come within the concept of "goods, services and facilities".

7The respondents' Request to dismiss the Application on the basis that it fails to raise a Code-related area is denied, without prejudice to the respondents' right to raise this issue at a later stage in the proceeding.

REQUEST FOR PRODUCTION

8The respondents note that the applicant's materials indicate that (i) the applicant has previously filed complaints with the Ontario Human Rights Commission ("Commission") against Sunnybrook and the ONA and (ii) there are concurrent applications filed with this Tribunal against Sunnybrook and the ONA. The respondents request production of these complaints and applications in order to assess and determine whether or not any complaints were previously filed with the Commission based on the same or substantially the same facts of this Application, as contemplated by section 53(8) of the Code. The respondents argue that they further require the production in order to assess and determine whether another proceeding has in whole or part appropriately dealt with the substance of the Application, or whether the facts of this Application are part of any other proceeding that is still in progress, as contemplated by section 45.1 of the Code. The respondents argue that the production is necessary in order for them to know whether or not they are entitled to request that the Tribunal dismiss or defer the Application.

9In her Reply and Response to the Request, the applicant did not address the Request for production.

10It is apparent from the applicant's materials that previous complaints and current applications exist regarding her concerns in relation to the affected parties and that these matters also pertain to the circumstances alleged in the current Application. Given that the complaints and applications were initiated by the applicant, there is no doubt that such documents are in the applicant's possession. It is further apparent that these documents contain information which is arguably relevant to the preliminary issues of dismissal and/or deferral. As such, the respondents' Request for production is granted. The respondents are entitled to production of materials which will provide them with information as to whether or not the current Application may come within section 53(8) or section 45.1 of the Code.

11Within 21 days of this Interim Decision, the applicant is directed to provide to the respondents copies of any of her past complaints and current applications which deal with the similar allegations of discrimination, harassment and reprisal and failure to accommodate against, or in reference to, Sunnybrook and/or the ONA. The applicant is further directed to provide copies of any decisions rendered by the Commission in the disposition of her complaints (subject to mediation privilege).

12The respondents have also requested production of any interim or final decisions of the Tribunal in relation to the applicant's complaints or applications. The Tribunal's decisions are published by three legal reporter services: Canadian Human Rights Reporter, Quicklaw and the Canadian Legal Information Institute, the latter being a publicly available internet database. The respondents can obtain copies of any decisions independent of this process and as such, the request for production of Tribunal decisions is denied.

13I am not seized of this matter.