Gardner v. YMCA of Greater Toronto, 2011 HRTO 261

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Javrine Gardner

Applicant

-and-

YMCA of Greater Toronto

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: February 7, 2011

Citation: 2011 HRTO 261

Indexed as: Gardner v. YMCA of Greater Toronto

APPEARANCES

Javrine Gardner, Applicant ) Self-represented

YMCA of Greater Toronto, Respondent ) Michelle Henry, Counsel

1The applicant filed this Application on July 27, 2010, alleging discrimination and harassment in employment on the basis of race, colour, ancestry, place of origin, ethnic origin, association and reprisal contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant answered question 8 in her Application, which asks applicants to specify what happened, by listing a number of general allegations in bullet points, and making detailed allegations in an attachment, consisting of four pages of hand-written notes. The allegations in the hand-written attachment are numbered 1-8. (The last allegation, 9, was inadvertently not numbered).

3The respondent filed a Response seeking early dismissal of a portion of the Application on the basis that the applicant had previously filed a claim under the Employment Standards Act, 2000 S.O. 2000, c. 41 (“ESA”) for unpaid wages and reprisal, and that the allegation in her Application concerning this has been appropriately dealt with in that proceeding. In addition, the respondent sought dismissal of the allegations of reprisal as they related to the applicant’s enforcement of her rights under the ESA, not the Code.

4The Tribunal convened a hearing by teleconference on January 24, 2011, at which time the respondent and applicant made oral submissions with respect to these procedural matters.

ANALYSIS AND DECISION

Section 45.1

5Section 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.

6As noted above, the respondent asserts that the allegation in the Application that the applicant had not been paid for work done and had not received overtime were the subject matter of claim under the ESA. Specifically, the respondent notes that the first allegation in the above-referenced hand-written attachment concerning question 8, entitled “fighting for my pay,” was fully addressed by the Employment Standards Officer (“ESO”).

7The undated Reasons for Decision of the ESO were attached to the Response. In this the ESO found that the respondent owed the applicant $1,482.70 in outstanding wages for the period from June 2008 to June 2009. It was noted in the decision that this sum had already been paid to the applicant because the respondent engaged in “voluntary compliance.”

8The applicant alleges she has had to fight for her pay since starting with the respondent. She does not, however, specify that the reason she has had to do this is related to any prohibited ground of discrimination listed in the Code. This pay dispute was squarely before the ESO, and analyzed in her Reasons for Decision. This proceeding has appropriately dealt with the substance of this part of the Application.

9It is not clear, even after hearing oral submissions, why the applicant raises this allegation in her Application. Accordingly, the portion of the Application that alleges the respondent failed to adequately compensate the applicant for the work she did for the respondent (point 1 in the attachment to her Application) is dismissed.

Reprisal

10Section 8 of the Code, which prohibits reprisals or threat of reprisals, states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

11The applicant cannot claim the protection of the reprisal section of the Code unless she is:

• claiming or enforcing a right under the Code;
• instituting or participating in proceedings under the Code:, or
• refusing to infringe the right of another person.

12The applicant alleges that as a result of “fighting for her pay” she was “black-listed” from working for the Mississauga YMCA locations. This allegation is found in points 2 and 7 of the attachment to the Application. Both on the face of the allegation, and in the applicant’s oral submissions, the allegation of reprisal stems from her instituting or participating in proceedings under the ESA, not under the Code. Accordingly, the allegation of reprisal is not within the Tribunal’s jurisdiction and is dismissed

The Remaining Allegations

13The applicant makes a number of other allegations, which she asserts are founded in racism, that, on their face, appear to be within the jurisdiction of the Tribunal. Accordingly, the Tribunal will deal with the remaining allegations articulated in points 3-6, 8 and 9 of the attachment to the Application.

14I am not seized of this matter.