Human Rights Tribunal of Ontario

B E T W E E N:

D.H.

Applicant

-and-

Splash International Marketing Inc., Vijay Madoo, and 1524700 Ontario Limited o/a Connect Personnel

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 21, 2011

Citation: 2011 HRTO 1190

Indexed as: D.H. v. Splash International Marketing Inc.

[1] This Interim Decision addresses the personal respondent Vijay Madoo’s request that the Application be dismissed pursuant to s.45.1 of the Human Rights Code, R.S.O. 1990 c.H.19 as amended, (the “Code”).

[2] The applicant contends that she was employed with the employment agency, 1524700 Ontario Limited o/a Connect Personnel (“Connect Personnel”), one of the corporate respondents in this matter when it placed the applicant with the corporate respondent, Splash International Marketing Inc., (“Splash International”) as a packer helper. The applicant alleges that on February 15, 2010, her supervisor at Splash International, personal respondent Vijay Madoo (“Mr Madoo”), sexually harassed her and subjected her to sexual advances and/or solicitation, thereby infringing her rights under the Code. The applicant also alleges that the corporate respondent(s) failed to investigate her sexual harassment complaint about Mr. Madoo, thereby infringing her rights under the Code.

[3] As a result of the events of February 15, 2010, the personal respondent was charged under the Criminal Code of Canada, R.S.C. 1985, c. C-46, with two counts of sexually assaulting the applicant and one count of sexual confinement.

[4] According to his Response to the Application, Mr. Madoo pleaded guilty to simple assault on June 4, 2010 and was given an absolute discharge. The remaining charges were withdrawn by the Crown. Mr. Madoo submits that the police officer’s statement regarding the events of February 15, 2010 was “read in” to the court record and “substantially agreed to” by the respondent at the time of his guilty plea. Mr. Madoo submits that the criminal proceedings appropriately dealt with the substance of the Application and that the Tribunal should dismiss the Application pursuant to s. 45.1 of the Code, which states:

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.

[6] In this case, I am not satisfied that the substance of the Application was “appropriately dealt with” by the criminal proceedings. The issue in the criminal proceedings against Mr. Madoo was whether he committed certain criminal offences. The substance of this Application is, among other things, whether Mr. Madoo infringed the applicant’s rights under the Code to be free from sexual harassment and sexual advances and/or solicitation by a person in a position to grant or deny a benefit to the applicant. There is nothing before me to suggest that the applicant’s allegations that she was sexually harassed by Mr. Madoo were considered and decided or otherwise dealt with by the judge in the criminal court. The mere fact that Mr Madoo pleaded guilty to simple assault based on some or all of the same facts as those underlying the Application is not a sufficient basis upon which to conclude that the human rights issues in the Application were dealt with in the criminal proceeding. The personal respondent’s Request that the Application be dismissed under s. 45.1 of the Code is denied.

Dated at Toronto, this 21^st^ day of June 2011.

”Signed by”

Sheri Price

Vice-chair