Tai Nguyen v. Ontario (Health and Long Term Care), 2009 HRTO 355

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tai Nguyen

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long Term Care, the Minister of Labour, the Ontario Human Rights Commission and the Minister of the Attorney General, the Ontario Labour Relations Board, the Ombudsman of Ontario, the Ontario Public Service Employees Union and Madeleine Meilleur

Respondents

decision

Adjudicator: Sherry Liang

Date: March 26, 2009

Citation: 2009 HRTO 355

Indexed as: Nguyen v. Ontario (Health and Long Term Care)

APPEARANCES BY

Tai Nguyen, Applicant ) On his own behalf

Her Majesty the Queen in Right of Ontario ) as represented by the Minister of Health ) and Long Term Care, the Minister of Labour, ) Lisa Amin, Counsel the Minister of the Attorney General, ) and Ontario Human Rights Commission, ) Respondents )

Ontario Labour Relations Board, Respondent ) Lisa Amin, Agent

INTRODUCTION

1This is an Application made under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on August 11, 2008.

2The name of the respondent the Ontario Labour Relations Board is amended to reflect the correct title.

3By Interim Decision, 2008 HRTO 139, the Tribunal directed a hearing on preliminary issues raised by the Application. This hearing was held in Ottawa on February 26, 2009.

BACKGROUND

4As described in the Interim Decision, the events forming the basis of the Application took place over a considerable period of time and involved a number of different organizations and individuals. The Application has its genesis in job competitions held by the Ministry of Health and Long Term Care (MOH) in 1995 and 1996. The applicant, an employee of MOH, filed a grievance through his union, the Ontario Public Service Employees Union (OPSEU), alleging that he was treated unequally in those competitions and in other interactions on the basis of his ethnic origin and language. The grievance was scheduled to be heard before the Grievance Settlement Board (the “GSB”) on September 15, 1999. It appears that prior to the hearing, the applicant decided that he was dissatisfied with the legal representation provided to him by the union. Although counsel for the union attended at the hearing, the applicant did not, and the GSB issued a decision dismissing his grievance.

5On August 17, 2000, the applicant filed a complaint with the Ontario Labour Relations Board (the “OLRB”), in which he alleged that the union breached its duty of fair representation under the Labour Relations Act, 1995, S.O. 1995, c.1, Schedule A as amended (the “LRA”). The Board directed the applicant to deliver submissions on whether his complaint should be dismissed because it did not set out facts establishing that the union breached its duty under the LRA, or because of undue delay. The Board subsequently issued a decision on October 27, 2000, dismissing the complaint on the basis of delay. The applicant requested reconsideration of the decision, which was refused by the Board on April 5, 2001.

6In June 2001, the applicant complained to the Ombudsman of Ontario about the OLRB’s handling of his complaint. In June 2002, the Ombudsman advised him that he did not find the complaint to be supported. In the fall of 2002, the applicant also sought assistance from the Deputy Premier and the Premier with respect to his concerns about the OLRB, both of whom referred him to the Minister of Labour. The Minister of Labour responded to the applicant in January 2003, indicating that he could not intervene in the OLRB’s decision-making.

7In July 2005, the applicant filed complaints with the Ontario Human Rights Commission (the “Commission”) against the MOH, OPSEU, the OLRB, the Ombudsman and the Ministry of Labour (MOL). As against the MOH, his complaint raised the same allegations of discrimination and harassment that were the basis of his grievance. As against OPSEU, he raised again his allegations that the union violated its duty of fair representation towards him. As against the OLRB, the applicant alleged essentially that they treated him unfairly in dismissing his complaint. Among other things, he made the claim that the OLRB created a fictitious Vice-chair who conspired with the Registrar of the OLRB to dismiss his case.

8The applicant’s complaint against the Ombudsman and the MOL was that they failed to assist him and that their failure was not consistent with “good policy” or their responsibilities. He also alleged that by refusing to help, they participated in covering up discrimination and harassment, as well as covering up the conspiracy at the OLRB.

9In all the above-noted complaints, the Commission exercised its discretion under subsection 34(1)(d) of the Code, as it then was, and decided not to deal with them because of the delay in making the complaints. Although the Tribunal does not have copies of the decisions on all the complaints, there is no dispute about the fact that the Commission decided not to proceed with the complaints. It appears from the material before me that the Commission dealt with the complaints simultaneously on October 26, 2005. The Commission turned down the applicant’s request for reconsideration of its decisions on June 14, 2006.

10Throughout the above history, the applicant wrote many letters to various politicians and officials in pursuit of his complaints. Some of the responses to these letters were filed with the Tribunal and some were referred to in the applicant’s oral submissions. In some letters, the applicant was advised to contact another individual or agency. For example, after the applicant wrote to his federal Member of Parliament, he was advised to direct his correspondence to his provincial Member of Provincial Parliament, as the matter was within provincial jurisdiction. He then wrote to Madeleine Meilleur, his MPP. Ms. Meilleur responded on May 25, 2004 stating that she was unable to intervene.

11It appears that the applicant continued to write to his MPP and in August 2006, her office forwarded a letter from him to the Attorney General for Ontario. The Attorney General responded on November 1, 2006 to his request for assistance with respect to his human rights complaints. Among other things, the Attorney General stated that he was not permitted to become involved in or interfere with specific cases. Following this letter there was further correspondence between the applicant and the Assistant Deputy Attorney General in which the applicant took issue with the Ministry’s refusal to intervene and was informed once again by the Ministry (on June 25, 2007) that it would not assist him.

12In sum, the applicant filed five complaints with the Commission against five of the respondents to this Application. In all these complaints, the Commission decided against proceeding further. In this Application, the applicant wishes to have the allegations contained in those five complaints heard by the Tribunal. Further, the Application alleges that the Commission, his MPP and the Attorney General (MAG) have participated in the discrimination against him by refusing to intervene on his behalf.

13To complete the background history, in 1998, the applicant filed a previous complaint with the Commission against OPSEU, regarding its lack of support for his claim of discrimination in the job competition process. In December 1999, the Commission exercised its discretion under the former section 34 and decided not to deal with the complaint.

SUBMISSIONS OF THE PARTIES

14The Tribunal has before it the Application, containing numerous attachments, and further correspondence from the applicant following the Interim Decision and prior to the hearing. Some of the respondents also made written submissions prior to the hearing.

15At the hearing, the Tribunal gave the applicant the opportunity to make submissions on four preliminary issues. The Tribunal asked the applicant to explain whether the Tribunal could proceed to deal with his Application when it appeared that he has previously filed complaints about the same matters to the Commission. In this regard, the Tribunal referred the applicant to the provisions of section 53(8) of the Code. The Tribunal also referred the applicant to the current section 34 of the Code, which requires that an application alleging discrimination must be brought within a year of the events or the last in a series of events. As many of the events described in his Application occurred years ago, some of them in the 1990’s, the Tribunal asked the applicant to explain the delay in making his Application.

16The Tribunal also referred the applicant to section 45.1 of the Code, which permits it to dismiss all or part of an Application if another proceeding has appropriately dealt with the substance of the Application. The Tribunal noted that the Grievance Settlement Board, the OLRB, the Ombudsman and the Commission have made decisions about aspects of his complaint, and asked the applicant to explain whether the Tribunal should deal with his complaint despite those decisions.

17Finally, the Tribunal asked the applicant to explain how the facts he alleges in his Application support a finding of discrimination under the Code. The Tribunal explained that the Code does not address all types of unfairness and that that it is not sufficient to allege that the respondents have been unfair, or have failed to perform their duties. The applicant was asked to explain how the respondents have discriminated against him on the basis of ethnic origin, race, colour, or any other ground covered by the Code.

18In his oral and written submissions, the applicant does not dispute that much of the Application is based on the same or substantially the same subject-matter as the complaints previously filed with the Commission. He states that they remain unresolved, however. He submits that all the respondents have joined together to cover up the problem. He asserts that the union “certified” that the MOH discriminated against him but no one has wanted to take action to resolve the complaint.

19With respect to this last point, the applicant believes that a letter from the union’s legal counsel to his employer in August 1999 outlining the basis of his grievance “certified” his claims of discrimination against his employer in the sense of serving as proof of the validity of these claims. However, it is apparent that this letter is no more than a document setting out the factual and legal assertions his counsel intended to rely on in advancing his grievance. It appears that the applicant’s misunderstanding of the nature of the letter has played a key role in his pursuit of these matters over the years.

20As to the delay in filing his Application, the applicant explained that he never stopped complaining about the failure of the respondents to address the alleged discrimination. Even in 2007, he continued to correspond with politicians and officials following his last letter from the MAG of June 25, 2007. In one letter, the Honourable Peter MacKay, Minister of National Defence, indicates that he has forwarded the applicant’s correspondence to the Commission. In another, an assistant to the Honourable Maxime Bernier, Minister of Foreign Affairs, advises him that he may wish to address his concerns to the Tribunal. When he wrote to the Tribunal in 2007, he was advised that until reforms to the Code came into effect on June 30, 2008, the Tribunal could not accept complaints except through a referral by the Commission.

21The applicant did not specifically address the delay in filing his Application as against each of the respondents although it is clear that for many years, he has appealed to many politicians and officials for assistance.

22On whether the Tribunal should apply section 45.1, the applicant states that nearly all of the respondents have agreed he was discriminated against; however they all referred him to yet another agency or individual. In his oral submissions, he asserted that he has over 100 letters of support from various Members of Parliament and others, including the Governor General, urging him to continue his case. Although there have been previous proceedings, the applicant states that all the respondents, including the OLRB and the Ombudsman wanted to join hands in covering up the problem and continuing the harassment and discrimination against him.

23On the issue of whether his Application raises issues of discrimination covered by the Code, the applicant states that the union’s lawyer recognized that he had been discriminated against in the workplace. By failing to represent him properly, the union participated in the discrimination against him. All the other respondents knew that he had been discriminated against, and by refusing to solve the problem, they essentially joined hands to continue the discrimination and cover it up. With respect to the Commission, he alleges that the Commission “stole” some of his letters with the intent of destroying his case.

24Counsel for the MOH, MOL, MAG and Commission made oral submissions on the issues. The Ombudsman and the OLRB filed written submissions in advance of the hearing. All these respondents request that the Tribunal dismiss the Application, relying on sections 53(8), 45.1, undue delay in filing the Application, and failure to raise any Code-related allegations.

DECISION

Section 53(8)

25Section 53(8) of the Code states:

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.

26The effect of section 53(8) is that an applicant may not make a new application to the Tribunal if he or she previously made a complaint about the same subject matter to the Commission. Section 53(8) applies even if the prior complaint was not referred to a hearing by the Commission. It applies even if the Commission exercised its discretion under section 34, as it did here, to decide not to deal with the complaint.

27This means that the Tribunal cannot deal with the allegations of discrimination in this Application that formed part of the applicant’s 1998 and 2005 complaints to the Commission. The result is that the Tribunal cannot deal with the allegations against the MOH, the OLRB, the Ministry of Labour, the Ombudsman or the OPSEU.

28I recognize that the applicant will have difficulty accepting this result. The application of section 53(8) to these circumstances is clear, however, and the Tribunal cannot ignore that section of the Code, or refuse to apply it.

29I also recognize that the applicant may have brought his Application to the Tribunal in part because one of the letters from the Attorney General’s office highlighted reforms to the human rights system in Ontario. In that letter, the applicant was informed of a new process allowing direct access to the Tribunal. The applicant referred to this letter in his oral submissions to the Tribunal.

30The applicant appears to interpret this letter, as he does other correspondence, as support for the merits of his complaints of discrimination, and an assurance that the agency to which he is directed will provide remedies for those complaints. It is apparent that the authors of many of these letters have tried to point him in the right direction. But in doing so, they cannot grant powers to an agency, including the Tribunal, that it does not have, or decide issues which are not theirs to decide. As I read the correspondence, none of the letter-writers have purported to do anything more than attempt, in a general way, to re-direct the applicant’s inquiries to a more appropriate place.

WHETHER THE ALLEGATIONS SUPPORT A FINDING OF DISCRIMINATION UNDER THE CODE

31My findings above relate only to the Application as against the MOH, OPSEU, OLRB, Ombudsman and MOL. As against the MAG, the Commission and his MPP, the Application must still fail because it does not disclose an arguable case of discrimination under the Code. The applicant’s written and oral submissions on this issue are essentially that the discrimination consists of the failure of these three respondents to assist the applicant. This cannot be the basis of a finding of discrimination under the Code, when there is nothing in the materials or in the applicant’s submissions to the Tribunal suggesting that his race, ethnicity or another prohibited ground played any role in the decisions by these persons not to intervene in the applicant’s situation.

32Likewise, the applicant’s allegations about the Commission are also that it “joined” in the discrimination by deciding not to deal with his complaints. In addition, the applicant alleges that the Commission “stole” his letters with the intent of destroying his case. I have reviewed the correspondence submitted by the applicant. The applicant asserts that he sent letters initiating complaints to the Commission in February and March of 2005, and that the Commission claimed not to have received them. He asserts that the Commission also asked him to re-send a forty-page attachment in April 2005. He quotes from a letter from the Commission in which an employee apologizes for the delay and frustration caused by these incidents. The applicant questions the sincerity of the apology, alleging that it is a “only a form of fabrication and fallacy to cover up a conspiracy of stealing letters…to cancel, dismiss and/or destroy my case like OLRB did before.”

33I have reviewed the applicant’s materials filed in support of his allegations against the Commission. Although they suggest some degree of clerical or bureaucratic error in dealing with the applicant, there is no basis to draw a conclusion that the Commission engaged in theft, with the deliberate purpose of sabotaging his complaints. In any event, there is no indication that the further delay caused by these incidents contributed to the Commission’s decision at the end of the day not to investigate his complaints. By the time the applicant contacted the Commission in 2005, between two and ten years had already passed since the time of the events about which he complained.

34Finally, and in any event, there is simply no reason to conclude that the applicant’s race, ethnic origin or another prohibited ground played any role in any of the Commission’s actions. The applicant strongly disagreed with the Commission’s decision not to inquire further into his complaints against the MOH, the OLRB, the MOL, the Ombudsman and the OPSEU. In his view, the Commission’s actions were part of the conspiracy to discriminate against him. But he has not shown any basis for his assertions that the Commission’s dealings with him raise issues of Code-related discrimination.

35Ultimately, the applicant has interpreted any refusal to assist him or to provide him with the remedies he seeks as an extension of the original discrimination he believes he suffered. This, however, is not enough for a finding of discrimination under the Code.

Section 45.1

36Section 45.1 of the Code states:

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.

37Because of my findings above, it is not necessary to address whether decisions made by the Grievance Settlement Board, the OLRB, the Ombudsman or the Commission appropriately dealt with the subject-matter of all or part of this Application. However, the Tribunal wishes to address the applicant’s assertions about the OLRB’s decision, as they have been advanced and repeated by him over the years. As indicated above, he claims that the OLRB created a fictitious Vice-chair in order to dismiss his complaint. At the hearing before the Tribunal, he was asked what reason he has to believe that the Vice-chair did not exist and that the ORLB forged its decision. He referred to letters from Joe Clark, then leader of the Progressive Conservative Party of Canada, and from the Chair and Registrar of the OLRB as the evidence supporting his position.

38I have reviewed the material the applicant refers to and nothing in it supports the conclusion that the OLRB engaged in forgery or fraud. Indeed, it is a matter of public record that Diane L. Gee was, at the time of the decisions in 2000 and 2001, a Vice-chair of the OLRB. I do not accept the applicant’s contention that the OLRB engaged in a conspiracy to discriminate against the applicant by fabricating the existence of a Vice-chair.

DELAY

39Despite the 13 year history of these events, in some ways this case is unlike others where issues of delay arise. It cannot be said that the applicant has failed to take any steps to assert his rights or complain about perceived violations of his rights. He has, over the course of many years, contacted many agencies, officials and politicians about his situation. He has made official and unofficial complaints and requested assistance from many sources. Even after the last incidents of alleged discrimination in 2007, the application continued to seek assistance from wherever he could.

40Given my findings above, however, it is not necessary for me to decide whether to accept the Application despite the apparent delay in filing it. Even if there were valid reasons for the delay, I find that the Application cannot proceed.

CONCLUSION

41The crux of the matter is that for some 13 years, the applicant has pursued his case with many individuals and agencies, some of whom were in a position to review his situation and provide him with remedies if warranted. Ultimately none of them, for various reasons, gave the applicant the remedies he was seeking. As a result, he continues his pursuit. But the fact that the applicant has not been able to achieve a remedy elsewhere does not entitle him to have his matter start afresh before the Tribunal.

42For the reasons given above, the applicant may not bring this Application against the MOH, OPSEU, OLRB, Ombudsman and MOL as it is about the same subject-matter of his complaints against these respondents to the Commission. Further, the Application does not disclose any arguable case of discrimination against the MAG, the Commission, or Ms. Meilleur.

43The Application is dismissed.