Elizabeth Brown v. City of Ottawa, 2011 HRTO 1412

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Brown

Applicant

-and-

City of Ottawa

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: July 27, 2011

Citation: 2011 HRTO 1412

Indexed as: Brown v. Ottawa (City)

WRITTEN SUBMISSIONS BY

Elizabeth Brown, Applicant ) David Jewitt, Counsel

City of Ottawa, Respondent ) David Patacairk, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 22, 2011, alleging discrimination in employment on the grounds of race, colour, ancestry, place of origin, ethnic origin, disability, creed, sex, marital status, age, association with a person identified with a prohibited ground and reprisal.

2The applicant’s bargaining agent Ottawa Carleton Public Employees Union CUPE Local 503 (the “union”) filed a Request to Intervene in the proceeding. The respondent filed a Request for Order during Proceedings (“RFOP”) requesting that the Application be dismissed on the basis that the applicant previously filed a Complaint with the Ontario Human Rights Commission (“Commission”) based on the same or substantially the same facts. The respondent argues that the Application is therefore beyond the jurisdiction of the Tribunal pursuant to section 53(8) of the Code.

3The Tribunal then received a letter dated June 2, 2011, from David Jewitt, counsel for the union, indicating that the Request to Intervene was being withdrawn and the union was now representing the applicant. The applicant filed a reply dated June 23, 2011, addressing the section 53(8) issues raised in the ROFP. The reply also clarifies the allegations and provides more fulsome particulars.

4Section 53(8) of the Code provides:

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.

5The applicant filed a Complaint with the Commission under the old Part IV of the Code which appears to be signed in April 1994. The applicant received a letter from the Commission dated May 18, 1995, indicating that a copy of the Complaint had been registered and served on the respondent who had been asked to provide a response. A copy of Complaint and the letter of May 18, 1995 were attached to the Application before the Tribunal.

6In her Application, the applicant indicates that the Complaint was disposed of by the Commission in May 1997 on the basis that the subject-matter was more appropriately dealt with by the Ontario Labour Relations Board. The applicant filed a Request for Reconsideration which was dismissed on August 15, 1997. Although the applicant did not provide copies of the documents related to the Commission’s decisions, the Respondent did not take issue with the chronology of these events.

7In the Complaint before the Commission the applicant self-identifies as a black female originally from Kenya. She indicated that she had been employed by the City of Ottawa since 1982. The allegations contained in the Complaint occurred primarily in the fall and winter of 1994 and include:

1. Disciplinary meetings she was required to attend in November 1994 about her interactions with a member of the public which resulted in a suspension;

2. Shift schedule changes to accommodate medical treatment;

3. Denial of work-related benefits include compressed work weeks, job training, equipment;

4. Negative, racial comments by coworkers and supervisors about people of colour.

8With respect to the Application before the Tribunal, the applicant lists the date of the last event as occurring on February 18, 2011, although it is not clear from her narrative which event actually occurred on that date. The use of that date appears to signal that the applicant’s allegations are ongoing up to the date of her Application and beyond. The applicant argues that her current Application relates to a completely unrelated set of events from several years after the events of 1994 to 1997 in a different employment context, namely, the post-amalgamation City of Ottawa. The allegations which are included in the Application and further clarified in the applicant’s submissions in response to the RFOP, relate to issues of accommodation arising from the applicant’s disabilities, carpal tunnel syndrome and diabetes; discriminatory attitudes on the part of her co-workers and supervisors towards the management of her diabetes and events occurring in 2010 and 2011 which are alleged to demonstrate poisoned work environment and racial discrimination.

9While I understand the respondent’s concern that some of the allegations appear to arise from a history of similar allegations against the employer, the subject-matter of the Application relates to events which post-date the Commission’s processing of the original Complaint. I am not prepared to bar this Application on the basis that the current allegations are broadly related to the same theme as the original Complaint, for example, “racism in the workplace”. The subject-matter of the complaint also includes an analysis of the particulars of the complainant’s allegations. In this case, the allegations relate to events which occurred after the Commission disposed of the Complaint and on that basis, I conclude that the Application is not barred by section 53(8).

10The applicant does refer in her current Application to events which occurred during the period 1986 to 1997, although her submissions make it clear that these allegations do not form the basis of her current Application. Some of this information appears to be provided for context and it will be up to the presiding adjudicator to determine how much, if any, of this evidence will be relevant to the issues currently before the Tribunal.

11My findings in this case may be distinguished from the decision in Pannu v. Peel District School Board, 2011 HRTO 801, where the Tribunal determined that events post-dating the filing of a Commission Complaint in 2007 were nevertheless barred by section 53(8). That finding was made on the basis that the substance of the Commission complaint that was subsequently adjudicated by the Tribunal on a s. 53(3) transition application included events after the filing of the complaint. Pannu does not suggest that s. 53(8) bars an Application based on new events that occurred after the final resolution of a Commission complaint.

12Accordingly, the Application will proceed. The respondent has requested an opportunity to file a further Response to the Application and it will have 35 days from the date of this Interim Decision to do so. If the applicant requires an opportunity to reply, she may do so in accordance with Rule 9.

13I am not seized.