HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Martin Griffey
Applicant
-and-
Drs. Paul and John Rekai Centres and Mary Hoare
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Griffey v. Drs. Paul and John Rekai Centres
WRITTEN SUBMISSIONS BY
Martin Griffey, Applicant ) Self-represented
1This is an Application filed on June 22, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, colour, ancestry, ethnic origin, sexual orientation and reprisal.
2The Tribunal has not yet delivered the Application to the respondents. Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent(s), issue a Notice of Intent to Dismiss the Application (“NOID”).
3The Tribunal sent the applicant a NOID on August 16, 2010. The NOID indicates that it appears that the Application is outside the Tribunal’s jurisdiction because it was filed June 22, 2010, more than one year after the applicant left his employment on June 12, 2009. The NOID notes the Application’s claim that November 24, 2009 was the date of the last incident of discrimination. It was on this date the applicant sent a letter communicating his dissatisfaction to the Drs. Paul and John Rekai Centres (the “organizational respondent”), about its failure to act in response to the concerns he had raised in a post-exit feedback letter dated September 14, 2009. However, the NOID indicates that the November 24, 2009 letter does not appear to allege discriminatory treatment under the Code.
4The NOID directs the applicant to provide submissions within 30 days to clarify the date of the last alleged incident of discriminatory treatment and explain how this incident raises a matter the Tribunal has the jurisdiction to decide. It further requests that if there was a delay in the filing of the Application of more than one year after the last incident of discrimination the applicant provide an explanation for why this delay may have been incurred in good faith and with no substantial prejudice to the respondents. On September 14, 2010, the applicant provided his written submissions in response.
BACKGROUND
5The Application provides an account of the applicant’s employment as a senior manager with the organizational respondent with a focus on interactions between the applicant and other staff with Mary Hoare, the chief administrative officer (the “personal respondent” or “CAO”). The Application describes a number of events and incidents during the period April 2008 to June 2009, and expresses specific concerns about comments made by the personal respondent, the personal respondent’s management practices, and the actions of the organization respondent’s Board of Directors in response to issues raised by the applicant and others about the personal respondent’s conduct. The applicant alleges that comments made by the personal respondent about other individuals were derogatory and offensive and that he was working in a poisoned work environment.
6The applicant states that he resigned on the grounds that he found it untenable to continue working for the organization given the conduct of the personal respondent. His last day of employment was June 12, 2009. The applicant subsequently wrote a letter dated September 14, 2009 to a Board Director (which he described as an exit interview) to communicate his concerns about the conduct and management practices of the personal respondent as well as raising broader issues related to governance, staff morale and the reputation of the organizational respondent.
7On September 30, 2009, the Board Chair wrote to the applicant thanking him for raising his concerns and indicating the actions they were undertaking as a Board to further its strategic plan for the organizational respondent.
8On November 24, 2009, the applicant wrote to the Board Chair to express his concern that the September 30, 2009 letter from the Board Chair failed to address the issues raised in his September 14, 2009 letter. In his submissions, the applicant described a number of further actions he has taken in the period from November 24, 2009 to June 22, 2010, when he filed his Application. This includes a reference to having exchanged letters with the Board’s counsel in May and June 2010 in an effort to settle his human rights issues, having received no answer to his November 24, 2009 letter.
DECISION
9Section 34 of the Code states:
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
10The applicant submits that the organizational respondent’s failure to respond to his allegations of discrimination in the period after he left his employment constitutes an act of discrimination. The applicant refers specifically to November 24, 2009, but may also be relying on the organizational respondent’s failure to adequately respond to his May 2010 correspondence as a further act of discrimination.
11Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Morin c. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.
12The Tribunal has also held that a respondent has a duty to investigate complaints of discrimination or harassment and that the duty to investigate is the means by which an employer ensures that it is achieving the Code mandated responsibility of operating a discrimination-free environment. (See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30.
13In my view, it is not plain and obvious that the Application is out of time given the applicant essentially argued that the respondents failed to meet their Code-related obligation to investigate an allegation of harassment or discrimination in the period after the applicant’s employment ended. Under the circumstances, the respondents are directed to file a Response (or Responses) to the Application.
14This Interim Decision does not constitute a final decision on the issue of delay and the respondents are entitled to raise delay or any other jurisdictional issue as part of their Response(s). The applicant may file a Reply in response to the respondent’s Response(s).
15The Tribunal will provide the respondents with this Interim Decision, the Application and the applicant’s submissions in response to the NOID.
16I am not seized of this matter.
Dated at Toronto, this 23rd day of September, 2010.
“Signed by”
Eric Whist
Vice-chair