Linda Saxon v. Amherstburg Police Services Board and Tim Berthiaume, 2010 HRTO 1204

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Saxon Applicant

-and-

Amherstburg Police Services Board and Tim Berthiaume Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: May 28, 2009 Citation: 2010 HRTO 1204 Indexed as: Saxon v. Amherstburg Police Services Board

1The applicant filed an Application with the Tribunal on February 12, 2010 alleging discrimination on the basis of disability, marital status and association with a protected person in the area of goods, services and facilities contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code").

2The respondents filed a Response on April 21, 2010. In their Response, the respondents request early dismissal of the Application on the basis that the subject-matter of the Application is the same or substantially the same as the subject-matter of a complaint that was previously filed with the Ontario Human Rights Commission ("Commission").

3On May 18, 2010 the applicant filed a Response to the Request to Dismiss setting out her submissions as to why her Application should not be dismissed.

Request to Dismiss

4The respondents base their request to dismiss on section 53(8) of the Code, which 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.

5Under section 53(8), the Tribunal lacks jurisdiction to accept an application in circumstances where the allegations contained in the application constituted the subject-matter of a complaint previously filed with the Commission under the old Part IV of the Code.

6The respondents argue that the applicant's spouse had an employment-related human rights complaint against the same institutional respondent and that this Application and the applicant's spouse's complaint are substantially the same. The spouse's complaint was litigated before the Tribunal as an application made under s.53(3) pursuant to the transitional provisions of the Code. The Tribunal dismissed the spouse's Application. See Saxon v. Amherstberg Police Services Board, 2009 HRTO 1628.

7The respondents allege that the applicant's current allegations pertain to inquiries made by the respondents in relation to her spouse's disability claim. The respondents further allege the applicant served as her spouse's representative in the hearing of his complaint and unsuccessfully sought to add the personal respondent in this Application as a party to her spouse's complaint. The respondents submit that no Code-protected rights of the applicant have been infringed and that the applicant is attempting to distort the provisions of the Code to re-litigate matters dealt with previously in relation to her spouse.

8The applicant submits that her Application is not substantially the same as her spouse's complaint and that the respondents' request to dismiss is an example of the marital status discrimination that she has experienced.

DECISION

9The Application sets out allegations with respect to discussions the personal respondent had with the applicant's spouse's disability insurer. The applicant alleges that the personal respondent made negative and discriminatory remarks, as well as disclosed personal information about her, in the course of conversations regarding her spouse's disability claim. The Application further alleges that the respondents gathered information about the applicant and her activities and reported this information to a third party because of whom she is married to and because of disability. The applicant alleges that she has not been afforded "equal and unbiased police protection" by the respondents.

10A review of Saxon v. Amherstberg Police Services Board, 2009 HRTO 1628, attached to the Response, confirms that matter involved a claim of discrimination and failure to accommodate in employment on the basis of disability. The Tribunal found that the respondent employer offered the applicant's spouse appropriate accommodation which was declined. The Tribunal also found that there were no other accommodations that could have been provided short of undue hardship.

11The Tribunal is satisfied that the subject-matter of this Application is not substantially the same as the subject-matter of her spouse's human rights complaint. As such, s.53(8) is not applicable and the Request to dismiss the Application is denied.

12The respondents have indicated a willingness to participate in mediation but the applicant has not. The applicant is directed to advise the Tribunal's Registrar within 10 days of the date of this Interim Decision whether she is interested in participating in mediation.

13I am not seized of this matter.