Jennifer Thong v. Toronto Catholic District School Board, 2010 HRTO 1016

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Thong

Applicant

-and-

Toronto Catholic District School Board

Respondent

DECISION

Adjudicator: Naomi Overend Date: May 6, 2010 Citation: 2010 HRTO 1016 Indexed as: Thong v. Toronto Catholic District School Board

1The applicant filed her Application on August 7, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination on the basis of race, disability, age and reprisal in employment. In this Application, she advises that she had also filed a complaint with the Ontario Human Rights Commission (the “Commission”) based on the same facts as this Application.

2Counsel for the respondent sent in a Response asking the Tribunal to dismiss the Application on the basis that the applicant had filed a complaint with the Commission based on the same, or substantially the same, facts as her Application. A copy of the complaint was attached to the Response. The respondent also attached the applicant’s letter of withdrawal to the Commission, which was sent following a failed mediation at the Commission.

3The Response was sent on behalf of both the named respondent and on behalf of the individuals set out in the Form 1-A to the Application (but not named in the Application itself). The individuals listed in the Form 1-A are Linda Moynagh, Bob Gutcher and Bob Guniak.

4Subsection 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 filed with the Commission under the old Part IV.

5The applicant filed a Reply indicating that the respondent is incorrect in saying that the same individuals are involved. She submits that, in addition to Ms Moynah, Mr. Gutcher and Mr. Guniak (who were also specifically named in her complaint to the Commission); she also specified that “the authors of emails and letters containing criticism of my accent, as well as my character and work ethic” are respondents to her Application. In her Reply, she specifies that this group includes another 13 individuals, whom she names.

6The Reply also states that her complaint to the Commission was never investigated because she was pressured to “drop” her case by her former counsel. Finally, the applicant states that her Application includes further allegations of an ongoing nature, although those to which she has assigned a specific date are alleged to have taken place in 2007, the year she filed her complaint with the Commission.

7Subsection 53(8) is concerned with whether the subject-matter of the Application is the same or substantially the same as the previous complaint with the Commission. Accordingly, factors such as whether the Application now includes an expanded list of named respondents or allegations, or whether the Commission investigated the complaint, are simply irrelevant to the issue before the Tribunal.

8I find that the subject-matter of this Application is substantially the same as the applicant’s previous complaint to the Commission and, therefore, this Application is barred by subsection 53(8). Accordingly, this Application is dismissed.