Barker v. Service Employees International Union, Local 1 Ontario, 2009 HRTO 891

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Megan Barker

Applicant

-and-

Service Employees International Union, Local 1 Ontario and

George Surdykowski

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: June 22, 2009

Citation: 2009 HRTO 891

Indexed as: Barker v. Service Employees International Union, Local 1 Ontario

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on January 28, 2009, alleging discrimination in employment. The individual respondent filed a Response on March 20, 2009 in which he requests that the Application be dismissed without a hearing for, among other things, lack of jurisdiction. The organizational respondent filed a Response in which it requests that the Application be dismissed pursuant to section 45.1 of the Code. Additionally, the individual respondent named as an affected party the Ontario Labour Management Arbitrators’ Association (OLMAA), which has made a Request to Intervene. The applicant did not file a Reply.

BACKGROUND

2The applicant’s employment with the organizational respondent was terminated on February 4, 2008. In a grievance filed by her union against the organizational respondent the applicant alleged that she had been terminated without just cause. The matter reached arbitration before the individual respondent, Mr. Surdykowski, who is an independent labour relations mediator and arbitrator appointed to hear the grievance. In a decision dated June 9, 2008, Mr. Surdykowski found on the basis of medical evidence that the applicant had no reasonable prospect of returning to work, and upheld the termination of her employment.

3The applicant then filed this Application, in which she seeks reinstatement to her employment with the organizational respondent as well as monetary compensation from both respondents for losses incurred as a result of her termination and the individual respondent’s failure to rule in her favour at arbitration. The applicant alleges that the organizational respondent discriminated against her on the basis of a disability by failing to take reasonable measures to accommodate her and by ultimately terminating her. She also alleges that the individual respondent, Mr. Surdykowski, discriminated by failing to find in her favour and by disregarding supportive medical evidence introduced at the arbitration hearing.

DISMISSAL FOR LACK OF JURISDICTION

4The Tribunal finds it appropriate to deal initially with the request by the individual respondent to dismiss the Application. He makes this request on the basis that he is protected by “judicial immunity”, which he argues precludes the instant proceedings against him. He further argues that the Application should be dismissed on the basis of the doctrine of issue estoppel and on the basis of section 45.1, because another proceeding has appropriately dealt with its substance.

5The Tribunal does not have a general power to enquire into claims of unfairness. Its jurisdiction is based on the provisions of the Code, which states, among other things, that every person has the right to equal treatment “with respect to services, goods and facilities”. While the applicant has not specified “services” in her Application, it appears her allegations against the personal respondent are related to this social area.

6A number of cases before the Tribunal have raised the issue of the extent to which it has jurisdiction to deal with a claim that an adjudicative body failed to provide its “services” in a non-discriminatory way. The Tribunal has stated that the content, reasoning and result of a decision made in the exercise of a statutory power of decision are not subject to the Code: Baird v. Workplace Safety and Insurance Appeals Tribunal 2009 HRTO 99.

7The applicant’s case against the individual respondent is based on alleged deficiencies in his decision. Given the approach of the Tribunal in other cases, this raises a question about whether the Tribunal has any jurisdiction to address this issue. Where an Application is beyond the jurisdiction of the Tribunal, it will be dismissed pursuant to Rule 13.

8In the light of the material before it, the Tribunal requests the applicant’s submissions on the issue of its jurisdiction to hear her Application as against the personal respondent. Her submissions should explain how this Application raises matters as against Mr. Surdykowski which the Tribunal has the power to decide. The applicant’s submissions should be delivered to the respondents and filed with the Tribunal within 20 days of the date of this Interim Decision. The respondents are not required to file responses to the applicant’s submissions, pending further direction from the Tribunal.

OTHER MATTERS

9It is appropriate in the circumstances to defer deciding the section 45.1 issue until after the jurisdictional issue is resolved. Following the Tribunal’s decision on the jurisdictional issue, the Tribunal will provide further directions, which may include ordering a hearing to receive submissions on section 45.1. It is also unnecessary at this time to deal with the Request to Intervene filed by the OLMAA.

ORDER

10In view of the foregoing, I order that, within 20 days of the date of this Interim Decision, the applicant should deliver to the respondents and file with the Tribunal submissions addressing the question of whether the Tribunal has the power to consider her Application against the individual respondent, Mr. Surdykowski.

11I am not seized.