Achille Ruffolo v. Sun Life Financial, 2010 HRTO 2009

Human Rights Tribunal of Ontario

B E T W E E N:

Achille Ruffolo Applicant

-and-

Sun Life Financial Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: September 30, 2010 Citation: 2010 HRTO 2009 Indexed as: Ruffolo v. Sun Life Financial

BACKGROUND

1The applicant filed Application 2010-04869-I ("First Application"), under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on February 18, 2010, alleging reprisal in the area of services, goods and facilities.

2In the narrative of the First Application, the applicant explains that he had previously filed a complaint with the Ontario Human Rights Commission ("Commission") regarding the respondent's alleged non-payment of cost of living and inflation indexing of his monthly benefits ("complaint SYRS-5VMLN3"), which was dismissed by the Commission. The applicant alleges that the respondent continues to retaliate against him by denying proper cost of living and inflation indexing of his monthly benefits. The applicant further alleges that in 2007 the respondent misrepresented his benefit amount to Revenue Canada, which resulted in a reassessment of his tax return. The applicant claims that, despite his telephone calls and emails, the respondent will not follow up on his concerns. The applicant alleges the respondent's conduct is reprisal against him for filing a complaint with the Commission.

3The applicant filed Application 2010-04994-I ("Second Application"), under section 34 of Part IV of the the Code, on March 2, 2010, alleging reprisal in the area of services, goods and facilities.

4In the narrative of the Second Application, the applicant again explains that he had a previous complaint with the Commission (complaint SYRS-5VMLN3). The applicant notes that several years later he filed a reprisal complaint with the Commission ("complaint RSEA-6DKQP4") alleging that the respondent reduced his benefits as retaliation for complaint SYRS-5VMLN3. The applicant also notes that he filed the First Application with the Tribunal because of the respondent's failure to pay his cost of living and inflation indexing in 2008 and 2009. The applicant alleges that the respondent is withholding his February payment as retaliation for the previous complaints.

DUPLICATION

5On August 23, 2010, the Tribunal issued a Notice of Intent to Dismiss the Second Application on the basis that it appeared that it was a duplicate of the First Application. The Tribunal invited the applicant to provide written submissions within 30 days to address this issue.

6The applicant did not file submissions in response to the Tribunal's Notice and the timeline for doing so has elapsed.

7Having reviewed both Applications, I find that it is not plain and obvious that the two Applications are duplicates. While it appears that the two Applications overlap on certain points, there are nevertheless discrete allegations in each Application. Specifically, the First Application alleges the respondent denied the applicant cost of living and inflation indexing and reprised against the applicant by providing inaccurate information to Revenue Canada precipitating a tax reassessment. While the Second Application reiterates this cost of living and inflation indexing concern, the Second Application also alleges that the respondents withheld the applicant's February benefit payment as reprisal.

8In conclusion, the Second Application will not be dismissed as a duplicate of the First Application. The portions of the Second Application which repeat the allegations made in the First Application (cost of living and inflation indexing concern) will be struck as duplicative.

POTENTIAL SECTION 53(8) ISSUE

9Section 53(8) of the Code states that 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 of the Code.

10Under section 53(8) of the Code, the Tribunal lacks jurisdiction to accept an application in circumstances where the allegations contained in the application constitute the same or substantially the same subject-matter of a complaint previously filed with the Commission under the old Part IV of the Code.

11As such, the Tribunal determines that it is appropriate to receive submissions regarding whether or not the First Application is the same or substantially the same as either of the previous human rights complaints filed with the Commission, and if so, whether or not the First Application, in whole or in part, is barred by virtue of section 53(8). Specifically, it appears that the allegation in the First Application that the respondent has denied the applicant cost of living and inflation indexing may relate to the claims asserted in the previous Commission complaints.

POTENTIAL DELAY ISSUE

12Section 34 of the Code provides:

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 subsection 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.

13The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay, it has no power to relieve against the one-year time limit and to determine the Application.

14As such, the Tribunal determines that it is also appropriate to receive submissions regarding whether or not the applicant is prevented from proceeding with the allegations before 2009 on the basis of delay and whether any delay was incurred in good faith or will result in substantial prejudice.

CONCLUSION

15The Tribunal orders as follows:

• The Applications will be delivered to the respondent. At this time, the respondent is not required to file a Response;
• Within 14 days of this Interim Decision, the applicant may file with the Tribunal and deliver to the respondent written submissions with respect to the section 53(8) and delay issues;
• Within 10 days of receipt of the applicant's submissions, the respondent may file reply submissions;
• If the applicant does not file submissions in accordance with this timeline, the Tribunal may dismiss the Applications as being abandoned; and
• The Tribunal will consider the parties' submissions, and may determine any of the issues set out above based on the parties' submissions, and/or may determine and schedule future steps accordingly.

16I am not seized.