De Nicola v. Toronto Community Housing, 2011 HRTO 290

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chandrowty De Nicola

Applicant

-and-

Toronto Community Housing Corporation and Ian Fichtenbaum

Respondents

DECISION

Adjudicator: Alan G. Smith

Date: February 11, 2011

Citation: 2011 HRTO 290

Indexed as: De Nicola v. Toronto Community Housing

WRITTEN SUBMISSIONS

Chandrowty De Nicola, Applicant ) Self-represented

Toronto Community Housing Corporation, ) Respondent ) Christina Henderin, Counsel

INTRODUCTION

1The applicant filed this Application under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on September 29, 2010.

2The Application relates to alleged incidents which occurred when the applicant was employed by the respondent corporation during the period 2001-2002. In particular the applicant alleges Code contraventions by her then supervisor Ian Fichtenbaum.

3This Decision deals with a Request by the corporate respondent to dismiss the Application on the basis of a prior complaint filed by Ms. De Nicola with the Ontario Human Rights Commission (“Commission”) on December 2, 2002, as well as on the basis that the Application is untimely, having been filed some seven years beyond the last incident described in the Application.

4Along with the Request to dismiss, the corporate respondent provided copies of the 2002 complaint to the Commission, as well as the Commission’s response.

5Exercising its discretion under the former s. 34(1)(a) of the Code, the Commission issued a decision on December 15, 2004, declining to deal with the complaint. The Commission based its decision on the fact that the applicant was represented by a trade union and was at grievance arbitration, “concerning the same situation as is referred in her complaint including discrimination and harassment based on the grounds cited in the complaint”.

6Notably, in Question 13 of the Application the applicant answers “yes” to the question, “Have you ever filed a complaint with the Commission based on the same facts as this Application”.

7The Tribunal invited submissions from the applicant as to why the Application is within the Tribunal’s jurisdiction and should be decided by the Tribunal. The applicant provided further submissions on January 31, 2011, which included the statement, “…I the complainant, disagree the complaint filed on December 3, 2002, are based on the same facts as this application…”. Beyond this assertion, however, the applicant’s submissions do not explain how the subject matter of the present Application and the facts alleged in the Complaint to the Commission differ in any substantive way.

8The applicant’s submissions do contain statements expressing her dissatisfaction with the grievance-arbitration process she participated in post 2002. In particular she notes her discontent with the lengthy nature of the arbitration and states her belief that the corporate respondent has “hijacked” her grievances. But the applicant makes no allegations of discrimination under the Code apart from the events covered by her prior Commission complaint.

DECISION

9It is unnecessary for me to address the issue of the timing of the Application as the Tribunal has no jurisdiction to hear this matter. Section 53 (8) of the Code reads as follows:

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.

Through this provision, the Legislature has decided that an application under the new Code may not have the same subject-matter as a complaint that was previously filed with the Commission under the old Code.

10A comparative examination of the allegations contained in the Complaint filed with the Commission and the present Application reveals that they both cover the same time period in 2001-2002. Both documents deal with incidents occurring in the applicant’s workplace during that period, particularly with respect to the applicant’s interaction with Mr. Fichtenbaum.

11It may be that the applicant would have preferred that the Commission pursue her Complaint. She is also dissatisfied with arbitration process in which she is presently engaged and therefore wishes the Tribunal to inquire into her allegations of discrimination during 2001-2002. The Tribunal however does not have the discretionary power to accept applications that are based on the same subject-matter as complaints that were previously filed with and determined by the Commission before June 30, 2008. The Tribunal must interpret the Code, and s. 53(8) provides that it has no power or jurisdiction to hear such applications: Guzina v. Ontario (Environment), 2008 HRTO 57.

12In this case it is apparent that the claims of discrimination at the heart of the present Application were also made in a prior Complaint to the Commission. Under section 53(8) of the Code, the Tribunal has no jurisdiction to consider this Application.

ORDER

13The Application is dismissed.