HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Benjamin DeSousa
Applicant
-and-
City of Toronto
Respondent
-and-
Canadian Union of Public Employees, Local 416
Intervenor
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: DeSousa v. Toronto (City)
APPEARANCES
Benjamin DeSousa, Applicant ) Self-represented
City of Toronto, Respondent ) Sharmila Clark, Counsel
CUPE, Local 416, Intervenor ) Risa Pancer, Counsel
1The applicant filed this Application on September 14, 2009, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability and reprisal. The respondent filed a Response seeking early dismissal of the Application on the basis that the applicant had previously filed complaints to the Ontario Human Rights Commission (“OHRC”) with respect to some of the allegations, and grievances with respect to most of the allegations in his Application (including those on which he also filed complaints).
2An in-person hearing was convened on June 1, 2010, at which time the respondent and applicant made oral submissions with respect to these procedural matters.
3During his oral submissions, the applicant indicated that he had filed a Request for Order During Proceedings (Form 10) the previous evening asking to amend his Application to include an incident of alleged reprisal he said occurred May 19, 2010. As neither the respondent, nor the Tribunal had actually received a copy of this Notice, the applicant was advised to serve and file this Notice again. The parties were advised that the Tribunal would deal with this Request in writing.
ANALYSIS AND DECISION
Section 53(8)
4The facts of this Application span the period from 1999, the year in which the applicant was hired, until March 2009, when he asserts he resumed his regular duties. The applicant filed several grievances concerning this alleged conduct, and also two complaints to the OHRC.
5The first complaint to the OHRC concerns the period from the outset of the applicant’s employment until mid April 2006, and deals with the respondent’s alleged failure to accommodate the applicant’s disabilities. The OHRC reviewed his matter and on December 13, 2006, decided not to deal with the complaint under what was then section 34 of the Code, on the basis that the applicant was a member of a trade union and had filed grievances with respect to this alleged conduct. The applicant’s request for reconsideration of that decision was denied.
6These very allegations form paragraphs 1-9 of Schedule A to the Application. Schedule A contains the applicant’s particulars concerning the respondent’s alleged discriminatory conduct and is comprised of 16 numbered paragraphs.
7Section 53(8) of the Code states:
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.
8This provision applies even where only a portion of the application (as opposed to the entire application) deals with the subject-matter of a previous complaint to the OHRC. The applicant argues that s. 53(8) does not apply because the OHRC dismissed his complaint under s. 34 (and thus did not deal with his case on its merits), but there is nothing in the legislation that makes that distinction. Accordingly, paragraphs 1-9 in Schedule A to the Application are not appropriately brought to this Tribunal and are dismissed.
9The second complaint to the OHRC concerns an incident of alleged reprisal that took place in 2007. There are no particulars about this incident in Schedule A to the Application. In oral argument, respondent’s counsel noted that the applicant attached his grievances to his Application, and the subject-matter in the second OHRC complaint is covered in one of those grievances. Given that the subject matter of the second complaint is not an allegation of discrimination in the Application itself, any potential duplication with another proceeding does not need to be dealt with at this juncture.
10I note, parenthetically, that, should the applicant attempt to raise the subject matter of the second complaint at some future point, section 53(8) would apply to preclude consideration of this allegation even though the applicant subsequently withdrew his second complaint to the OHRC: See Sadaghyani v. Kingston General Hospital, 2008 HRTO 431.
Section 45.1
11As noted above, most of the allegations (including those found in paragraphs 1-9) in Schedule A of the Application were the subject matter of several grievances, which the applicant, his union and the respondent resolved by way of signed Minutes of Settlement. Section 45.1 of the Code states:
45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
12The applicant alleges that he agreed to the resolution of his grievances via a series of “last chance” agreements because it would have taken 6-12 months for his individual grievances to go to arbitration. He suggests that the grievance proceedings did not “appropriately” deal with the substance of the allegations of discrimination because he was under economic pressure to settle them.
13The fact that the applicant chose to expeditiously resolve his grievances is not a proper basis on which to conclude that the subject matter was not appropriately dealt with. Many litigants experience economic pressure to resolve a proceeding and it is not sufficient, by itself, to cause the Tribunal to look behind the resolution. The applicant, a union steward, is aware of the fact that had he chosen to wait, the matter would have proceeded to arbitration.
14The parties are in agreement that the particulars in paragraphs 10-13 and 15 of Schedule A to the Application were the subject of grievances, on which the parties signed Minutes of Settlement. I find, therefore, that s. 45.1 applies to these particulars, and dismiss these paragraphs accordingly.
15Paragraph 14 of Schedule A is a statement concerning the effectiveness of the respondents Human Rights Office, and paragraph 16 concerns allegations about the period from December 2008 to March 2009, on which the parties advise there has been no grievance. These are both properly brought to this Tribunal.
Request to Amend Application
16The applicant filed a Request for Order to amend his Application on June 2, 2010 to encompass an incident of alleged reprisal that took place on May 19, 2010. The applicant alleges it arose because he has filed this Application against the respondent. The intervenor filed a Form 11 on which it took no position on this Request, and the respondent has not filed any submissions on the issue.
17Given the nexus between this allegation and the Application, it would be both fair and expeditious to allow the amendment. This will allow all the related allegations to be dealt with in the same proceeding. The amendment is allowed to include the following language set out in part 3 of the Request for Order:
I arrived at the Ingram Yard with an employee that had called me with a concern [on May 19, 2010]. We approached Mr Joe O’Neil to discuss a concern that the employee had. I advised Mr O’Neil that the supervisors were speaking to the employees in an inappropriate manner. Mr O’Neil responded to me in a rude manner. He followed me out to my vehicle yelling at me, threatening me, he stated in front of employees “I don’t believe any liars, come back and talk or get the f***k out of my property. I replied please don’t talk to me that as I do not want to talk to you until you can speak to me in an appropriate manner. I believe that this behaviour is completely inappropriate and I believe that it is caused by my recent Human Rights complaint against the City of Toronto. I believe that this is reprisal.
18I am not seized of this matter.
Dated at Toronto, this 4th day of November, 2010.
“Signed by”
Naomi Overend
Vice-chair