Peter Obanda v. Viking Rideau Corporation and Gary Nixon, 2009 HRTO 601

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Obanda Applicant

-and-

Viking Rideau Corporation and Gary Nixon Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: May 8, 2009 Citation: 2009 HRTO 601 Indexed as: Obanda v. Viking Rideau

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant alleges that he was subjected to discrimination in services on the basis of his race, colour, ancestry, place of origin and ethnic origin. In particular, the applicant alleges that while in the Rideau Centre Mall on January 30, 2008 he was unfairly stopped and searched by mall security and treated in a humiliating and derogatory manner.

2The respondents request that the Application be dismissed on the grounds that the subject matter of the Application is substantially the same as the subject matter of a complaint that the applicant previously filed with the Ontario Human Rights Commission (the "Commission").

BACKGROUND

3In support of its request the respondents submitted a copy of the complaint the applicant filed with the Commission dated January 2, 2008. This complaint is based on an incident at the Rideau Centre Mall dated December 1, 2007 involving the applicant and mall security. The respondents also provided a letter from the Commission to the applicant dated June 18, 2008 setting out the Commission's investigation findings and the Commission's subsequent decision, dated October 29, 2008, indicating that the Commission would not refer the applicant's complaint to the Tribunal. The Commission concluded that the applicant failed to participate in the Commission's investigation process when he did not attend a fact finding meeting on May 26, 2008. Consequently, the Commission concluded it could not establish whether the applicant's rights under the Code had been infringed.

4In November 2008 the applicant asked the Commission to reconsider its decision. The respondents provided a copy of the materials the applicant provided to the Commission in November 2008 in support of his reconsideration request. The respondents provided a copy of the Commission's decision dated December 31, 2008 dismissing the applicant's reconsideration request.

5The respondents contend that it was understood that, during the course of the Commission's processing of the applicant's complaint, consideration was being given not only to the incident of December 1, 2007 but to the incident of January 30, 2008. To support this contention the respondents note that that the applicant's complaint to the Commission was not received by the respondents until March 7, 2008 which was after the January 30, 2008 incident. They stated that the applicant himself referred to the incident of January 30, 2008 in his dealings with the Commission when he made mention of his "second arrest" in his request for reconsideration to the Commission. The respondents noted that notwithstanding the applicant's request for the Commission to consider his "second arrest" the Commission dismissed his reconsideration request.

6The applicant submitted a response to the respondents' request. The applicant's central contention is that his complaint to the Commission, dated January 2, 2008 was based only on the incident at the Rideau Centre Mall on December 1, 2007 while his application before the Tribunal is based only on the incident at the same mall dated January 30 2008. He argues that these incidents, albeit similar in nature, are unrelated. Moreover, he contends that he never amended his complaint to the Commission to include the January 30, 2008 incident and this later incident was never considered by the Commission when it rendered its decisions in October 2008 and December 2008.

DECISION

7Section 53(8) of the Code provides:

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.

8The Tribunal finds that the applicant's current Application and the previous human rights complaint do not share the same or substantially the same subject-matter. The applicant's Application refers only to a January 30, 2008 incident. It makes no reference to any earlier incidents or issues the applicant may have had with the respondents. It makes no reference to the incident of December 1, 2007.

9The complaint before the Commission dated January 2, 2008 deals only with an incident of December 1, 2007. There is no evidence that this complaint was ever amended to include reference to the January 30, 2008 incident which forms the basis of the applicant's Application before the Tribunal. There is no reference in any of the Commission materials submitted by the respondents to indicate that the Commission considered the January 30, 2008 incident. There is no explicit reference in any of the materials submitted by the applicant to the Commission about the January 30, 2008 incident. The single reference to a "second arrest" in the applicant's seven page submission to the Commission in November 2008 – there is no other reference to the January 30, 2008 incident – hardly suggests that the Commission considered the January 30, 2008 incident in its decision of December 31, 2008 as the respondents tried to suggest.

10As the applicant's complaint before the Commission and the applicant's Application before the Tribunal deal with mutually exclusive incidents that occurred at different times they do not share the same or substantially the same subject-matter and the respondent's request is dismissed.

11I am not seized of these matters.