Frank Paterno v. The Salvation Army, Centre of Hope, Nancy Kerr and Nancy Powers, 2010 HRTO 10

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Paterno

Applicant

-and-

The Salvation Army, Centre of Hope, Nancy Kerr and Nancy Powers

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: January 5, 2010

Citation: 2010 HRTO 10

Indexed as: Paterno v. Salvation Army, Centre of Hope

1This is an Interim Decision in respect of an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that he was discriminated against with respect to employment on the ground of sex. At issue is a suspension, allegedly because of a complaint made by the applicant against a female co-employee, and a subsequent complaint or complaints filed by female employees within his workplace.

2In its Response, the respondent employer submits that a withdrawn grievance supports a request that the Tribunal dismiss the Application pursuant to section 45.1 of the Code as a matter that has been appropriately dealt with in another proceeding.

Does the Application Raise the Same, or Substantially the Same, Facts and Issues?

3As noted below in this Interim Decision, the applicant has indicated that he wishes to raise an issue of reprisal. He has not yet taken the steps necessary to apply to amend his Application. Reprisal was not an issue in the grievance, but otherwise, I find on the material filed that the Application raises substantially the same facts and issues as did the grievance.

Appropriately dealt with in another proceeding

4The event that gave rise to the Application was a suspension of the applicant from employment, which occurred on January 14, 2009. The applicant filed a grievance, dated February 20, 2009, that specifically refers to being escorted out of the building on that date, during his shift, and religious discrimination on the basis of sex.

5The respondents assert that the grievance raised the same facts and issues raised in the human rights Application, and states that the union withdrew the grievance “after discussion among the parties”. No further details are given, other than a referral to an attached copy of an e-mail from someone identified by the respondent as “Union representative John Cunningham”, which does no more than indicate that “the two remaining grievances are a withdrawn without P & P”. However, the respondents request that the Application be dismissed as having been “properly and wholly addressed and resolved through the grievance process”.

6Neither party has stated whether the applicant opposed the withdrawal of the grievance. In his Reply, the applicant addresses the grievance only insofar as he states that his Application was in regard to discriminatory actions by the respondents that preceded the grievance process. The email indicating that the grievance was withdrawn was signed by the union representative alone, and there is no indication that the applicant agreed to withdraw or refrain from instituting a human rights application. It appears that the withdrawal is “without prejudice.”

7Section 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.

8In Haykin v. Roth, 2009 HRTO 2017, the Tribunal addressed the purpose of s. 45.1. Reviewing previous decisions, the Tribunal noted that

It is clear from these decisions that the Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1, however, the principal concern is not whether there has been related or parallel litigation, but whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code.

9In other decisions, the Tribunal has stated that section 45.1 should be considered in two parts: (a) where there was another “proceeding”, and (b) if so, whether it “appropriately dealt with” the substance of the Application, see for example Carlos v. 1174364 Ontario, 2008 HRTO 403. With regard to the second issue, the Tribunal may consider whether the application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding: Keeling v. General Motors of Canada Ltd., 2009 HRTO 1110; Campbell v. Toronto District School Board, 2008 HRTO 62; Dunn v. Sault Ste. Marie (City), 2008 HRTO 149.

10This Tribunal has accepted that where a grievance dealing with substantially the same subject matter as an application has been settled by the parties, section 45.1 may apply to bar all or part of an application. Where, as in this case, a grievance has been withdrawn unilaterally by the union, it is not clear to me that there has been a “proceeding” for the purposes of section 45.1. In any event, it is clear that the allegations in this case were never “dealt with” at all, much less “appropriately”. In this respect the circumstances here resemble those in Schiff v. Ridout & Maybee, 2009 HRTO 1162, which considered the application of section 45.1 in respect of a complaint to the Law Society of Upper Canada concerning the same allegations as those contained in an Application. The complaint in Schiff had gone no farther than the Law Society’s Alternate Discrimination and Harassment Counsel, who had informed the respondents that “there was no basis to proceed with a complaint”. The Tribunal in Schiff quoted Maurer v. Metroland Media Group, 2009 HRTO 200, at para. 12:

[s]ection 45.1 addresses situations in which another proceeding has dealt with the substance of the Application, not in which another proceeding could deal with it. The existence of other avenues is not by itself a basis for the application of section 45.1.

11The respondent's Request is dismissed.

12The applicant sent an email on October 24, 2009, containing his Response. In this email, he also made an allegation of reprisal. The Registrar's office has advised the applicant that if he wishes to amend the Application in order to add the reprisal issue he must complete and file a Request for Order During Proceedings (Form 10).

13I am not seized of this matter.