Babin v. Toronto Police Services, 2009 HRTO 533

Human Rights Tribunal of Ontario

B E T W E E N:

Jocelyne Babin

Applicant

• and-

Toronto Police Services

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: April 29, 2009

Citation: 2009 HRTO 533

Indexed as: Babin v. Toronto Police Services

1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), dated March 9, 2009 as a result of her resignation from employment. She alleges that the respondent discriminated against her on the basis of record of offences and reprisal. She alleges that subsequent to filing a complaint about a management official in February 2008, she was not promoted to a position to which she had applied, and was reassigned to a different position which caused her to feel humiliated. She alleges that she felt that she had no choice but to resign from her employment with the respondent. She advises that she filed a grievance through the Toronto Police Association and filed documentation with the Tribunal showing that the grievance had advanced through the grievance process and was scheduled for conciliation on April 9, 2009.

RECORD OF OFFENSES

2The applicant marks "record of offences" as the alleged ground of discrimination on her application form. On the Form 1-A, which asks specific questions for employment discrimination applications, the applicant answered "no" to the questions "Do you believe you were discriminated against because of your record of offences under a federal law (Criminal Code offence)?" and "Do you believe you were harassed or discriminated against because of your record of offences under provincial law (such as the Highway Traffic Act)?".

3The applicant's narrative does not appear to allege that the respondent discriminated against her on the basis of record of offences. In employment, s. 5(1) of the Code prohibits discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability. Section 10(1) defines record of offences as 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(a) An offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or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.

4The applicant states that she does not believe she was harassed or discriminated against as a result of a conviction for either offence, and therefore the Application does not, in fact, allege discrimination on the basis of record of offences as defined in the Code.

5The applicant is required to deliver to the respondent and file with the Tribunal submissions setting out precisely the manner in which it is alleged that the respondent discriminated or harassed her on the basis of record of offences. The respondent is not required to file any submissions unless directed to do so by the Tribunal. The applicant's submissions should be delivered to the respondent and filed with the Tribunal by May 8, 2009.

REPRISAL

6Section 8 of the Code provides as follows:

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 for so doing.

7The applicant submits that she filed a complaint in February 2008 about a senior officer for allegedly bullying her, but does not set out any facts upon which the complaint was based and did not set out any Code grounds upon which the complaint was based. On its face, the Application does not allege any facts which would come within the scope of section 8. The applicant does not allege that she attempted to claim or enforce her rights under the Code, that she instituted or participated in proceedings under the Code or that she refused to infringe the right of another person under the Code.

8The Tribunal's jurisdiction is based on the Code, which prohibits discrimination in employment on the basis of protected grounds listed in the Code. It does not have a general power to inquire into employment relationships and difficulties that may occur in those relationships.

9The applicant is required to deliver to the respondent and file with the Tribunal submissions setting out precisely the manner in which it is alleged that the respondents engaged in reprisal(s) against the applicant, contrary to section 8 of the Code. The respondent is not required to file any submissions on the reprisal issue unless directed to do so by the Tribunal. The applicant's submissions should be delivered to the respondent and filed with the Tribunal by May 8, 2009.

DEFERRAL BECAUSE OF GRIEVANCE

10Section 45 of the Code confirms the Tribunal's authority to defer consideration of an application. Under Rule 14.1 of the Tribunal's Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. Where the Tribunal intends to defer consideration of an application, it will first give the parties and any identified trade union or occupational or professional organization and any identified affected person, notice of its intention to consider deferral and an opportunity to make submissions (Rule 14.2).

11The Tribunal usually defers an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

12Given the Orders issued in this Interim Decision which may affect the Tribunal's jurisdiction to hear the Application, it would not be fair, just or expeditious to receive submissions at this point addressing a deferral of the Application because of the grievance. After receiving the submissions from the applicant as ordered herein, the Tribunal may decide, on its own initiative or upon submissions from the respondent, to receive submissions about whether the Application should be deferred because of the grievance.

ORDER

13The Tribunal makes the following orders:

a) The applicant shall deliver to the respondent and file with the Tribunal by no later than May 8, 2009:

• Submissions setting out precisely the manner in which it is alleged that the respondent discriminated or harassed her on the basis of record of offences; and,

• Submissions setting out precisely the manner in which it is alleged that the respondents engaged in reprisal(s) against the applicant, contrary to section 8 of the Code.

b) The respondent is not required to file any submissions unless directed to do so by the Tribunal;

c) Following receipt of the submissions set out in paragraphs a and b above, the Tribunal may decide on its own initiative or upon submissions from the respondent to seek submissions about whether the Application should be deferred because of the grievance.

14The applicant may wish to consult the Applicant's Guide, available on the Tribunal's website or from the Registrar's office. Pages 2-3 of the Guide set out sources of assistance that may be available to her.

15I am not seized of this matter.