HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vinay Bhandari
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Education, Sanaul Haque, Asif Khan and Soussan Tarari
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as : Bhandari v. Ontario (Education)
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), dated May 11, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on August 16, 2006.
2The purpose of this Interim Decision is to address the Request for Order filed by the respondents seeking: an order to disclose a certain Memorandum of Settlement entered into between the corporate respondent and the Ontario Public Service Employees Union (the "OPSEU"); and an order regarding the proper scope of the Application.
Minutes of Settlement
3In the Response filed in this proceeding, the respondents referenced the fact that the applicant had filed a number of grievances through his union, OPSEU, dealing with the issues raised in this proceeding. These grievances were withdrawn as a result of a Memorandum of Settlement entered into between the corporate respondent and OPSEU, dated March 23, 2009. The applicant was not a party to the settlement.
4The respondents request an order to authorize them to disclose this Memorandum of Settlement. The respondents state that the Memorandum of Settlement is subject to a confidentiality provision that prevents this document's voluntary disclosure, but that an exception exists if the disclosure is required by law.
5In my view, the Memorandum of Settlement is arguably relevant to the matters at issue in this proceeding. Accordingly, I order its disclosure by the respondents for the purpose of this proceeding.
6All parties are reminded that pursuant to Rule 5.4 of the Tribunal's Transitional Rules, the parties and their representatives may not use documents obtained under the Rules for any purpose unconnected to the proceeding before this Tribunal. This restriction and requirement applies to the Memorandum of Settlement that I have ordered to be disclosed.
Scope of Application
7Pursuant to Rule 18.1 of the Transitional Rules, the applicant was afforded the opportunity to file with the Tribunal a statement of any additional facts that he intended to rely upon in this proceeding by no later than May 13, 2010.
8The applicant filed a series of letters dated April 27, 28 and May 3 and 6, 2010 in which he set out additional facts which post-date the filing of his complaint on August 16, 2006. The respondents object to the applicant raising these allegations in this proceeding.
9Pursuant to s. 53(5) of the Code, a transitional application filed under that statutory provision must be "with respect to the subject-matter of the complaint" that had been filed with the Commission. In addition, Rule 12.3 of the Transitional Rules states that s. 53(5) applications "must be based on the subject matter of the complaint or amended complaint filed at the Commission". While Rule 12.4 contemplates an ability to amend the complaint, this is expressly limited by the words "having regard to Rule 12.3". The Tribunal's case law with respect to transitional applications has held that, except in very limited circumstances, an applicant will not be permitted to raise new allegations that did not form part of the complaint or amended complaint filed at the Commission: DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281.
10The complaint as filed by the applicant with the Commission is dated August 16, 2006. The most recent allegation referenced in the complaint is an allegation that in July 2006, one of the personal respondents threatened the applicant by stating that if he approached the OPSEU, the applicant would not get any higher position.
11The materials filed by the applicant with the Tribunal include a chronology of events that references the applicant's suspensions from employment in January 2007, the subsequent termination of his employment in February 2007, and an investigation undertaken by the Ontario Provincial Police in early 2007.
12None of these later allegations form part of the subject-matter of the applicant's complaint as filed with the Commission on August 16, 2006, and the applicant has not filed any amended complaint as issued by the Commission which encompasses these later allegations.
13As a result, I find that the scope of the Application in this proceeding is restricted to the subject-matter of the complaint dated August 16, 2006 and filed with the Commission, and does not extend to allegations which post-date the complaint.
Dated at Toronto, this 8th day of July, 2010.
"Signed by"
Mark Hart
Vice-chair