Makhi v. Ontario Human Rights Commission, 2010 HRTO 1047

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rajoo Makhi

Applicant

-and-

Ontario Human Rights Commission,

Andrea Broadley, Roxanne Kalimootoo and Keith Norton

Respondents

decision

Adjudicator: Mark Hart

Date: May 11, 2010

Citation: 2010 HRTO 1047

Indexed as: Makhi v. Ontario Human Rights Commission

APPEARANCES BY

Rajoo Makhi, Applicant ) On his own behalf

Ontario Human Rights Commission, ) Cathy Pike, Counsel

Andrea Broadley, Roxanne Kalimootoo )

and Keith Norton, Respondents )

1This is an Application dated March 19, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in respect of goods and services and vocational associations by the respondents on the grounds of race, ancestry, place of origin, colour, ethnic origin, creed, sex, disability, receipt of public assistance and reprisal. The underlying complaint was filed with the Office of the Trustee of Investigations on October 16, 2007.

2The purpose of this Decision is to address the respondents’ request to dismiss this Application on the basis that the Tribunal has no jurisdiction to deal with it.

3A preliminary hearing was held in Thunder Bay on February 11, 2010 to hear oral submissions regarding the respondents’ request from the applicant, who attended in person with another individual to provide support, and from counsel for the respondents, who attended by telephone.

Background

4The applicant’s complaint against the respondents states that in early 2000, he filed three human rights complaints with the respondent Commission against the City of Thunder Bay, the Thunder Bay Police and the Thunder Bay Police Association respectively. The applicant states that he subsequently was provided with the responses from these three entities, and he filed detailed rebuttals to each response with the respondent Commission.

5At some later point, which the applicant states was over one year later, he received three case analysis reports prepared by the Commission investigator, recommending that the Commission not deal with his complaints. This caused the applicant to make various attempts to communicate with the investigator and his supervisor, the then Chief Commissioner and the Commission’s executive director, to which the applicant states that he did not receive any or any adequate response.

6The respondent Commission decided not to deal with any of the applicant’s three complaints, and these decisions were upheld on reconsideration.

7The applicant’s complaint states that he thereafter filed two further complaints with the respondent Commission on the grounds of racial harassment and reprisal against his employer and the City of Thunder Bay following the termination of his employment in December 2002 and the cutting off of his drug benefits. The applicant states that during 2005, both of these complaints were assigned to a second Commission employee, whose subordinates prepared further reports recommending that the Commission not deal with these complaints. The applicant states that he spoke to the Commission employee to whom the files had been assigned to try to get her to change the reports, but she refused to do so. The Commission thereafter decided not to deal with these two complaints, and these decisions again were upheld on reconsideration.

8The applicant states that he filed a sixth complaint, this time against his union, in February 2005, which was in abeyance at the time he filed his complaint against the respondents in October 2007.

9As a remedy, the applicant’s complaint sought the re-opening of all five complaints that the Commission had decided not to deal with, and the preparation of unbiased analyses for each of these complaints. The applicant also sought payment in full of all sickness benefits from 1994 onwards and the unconditional withdrawal of the letter terminating his employment, which are remedies that would need to be obtained from his employer and not from the Commission; as a result, these remedies appear to be contingent upon the Commission re-opening at least some of the complaints that it had decided not to deal with. The applicant also sought compensation for inconvenience, undue hardship, aggravation and mental anguish, as well as exemplary and punitive costs.

10In the Application filed with the Tribunal, the applicant has amended the remedy that he is seeking somewhat. He is now seeking a financial remedy of $750,000 calculated at the rate of $150,000 for each of the five complaints that the Commission decided not to deal with, plus applicable interest. In addition, he is seeking an order requiring the Commission to refer all of these five complaints to the Tribunal (which I note that the Commission no longer has the statutory authority to do). And finally he also is seeking exemplary, punitive damages and any other penalties that the Tribunal may deem fit and proper after taking into consideration the mental anguish, undue hardship, aggravation, inconvenience, difficulties, delays, discourteous treatment and emotional distress that has been inflicted upon him.

Analysis

11This Tribunal does not have jurisdiction to review the decisions of another adjudicative body. That jurisdiction belongs to the Divisional Court. As stated in Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 at para. 12:

The application of the Code and the powers of the Tribunal are specifically enumerated in the Code. Pursuant to s. 1, every person has the right to equal treatment “with respect to services, goods and facilities”. While a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public. The decision is, therefore, not subject to the Tribunal’s jurisdiction.

12While a recent decision of this Tribunal has expressed potential disagreement over the issue of whether the “content, reasons and result” contained in a decision of a statutory decision-maker can be understood to be part of a “service” within the meaning of s. 1 of the Code (see Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765, I agree with the reasoning and result in Ballieram v. Workplace Safety and Insurance Board, 2010 HRTO 712, that the initial Baird analysis was correct and that the term “services” in section 1 of the Code does not include the “content, reasons and result” contained in a decision of a statutory decision-maker, which is in accord with the vast preponderance of the jurisprudence of this Tribunal.

13The jurisdictional question for me then becomes whether this Application relates to the “content, reasons and result” of the Commission’s decisions not to deal with his various complaints. I find that in pith and substance, it does.

14It is clear from the complaint itself, the remedies sought in the complaint and the Application, and the submissions made by the applicant before me, that the applicant’s contention is that the Commission erred in refusing to deal with his complaints and he is seeking a remedy to rectify this situation, either by having these complaints referred to and heard by this Tribunal and/or by seeking a financial remedy against the Commission based upon its failure to deal with these complaints.

15In his complaint, the applicant repeatedly alleges that the reports prepared for the Commission and upon which the Commission’s decisions not to deal with his complaints were based, were biased and unfair, failed to address his allegations, and were prepared without affording him due process. These are grounds that the Divisional Court on judicial review may consider in deciding whether to overturn a statutory decision, and are not matters within this Tribunal’s jurisdiction.

16While the applicant’s complaint makes reference to various Commission personnel not returning his phone calls or not responding to his written communications, or being rude or discourteous to him, I find that these allegations are ancillary to the real pith and substance of the Application, which is an attempt to get this Tribunal to overturn the Commission’s decisions not to deal with his complaints, which is a matter that is not within this Tribunal’s jurisdiction.

17In the result, I find that the Tribunal has no jurisdiction to deal with this Application, and the Application is therefore dismissed.