Candice Jensen v. Lucijan Ulanowicz, 2011 HRTO 335

Human Rights Tribunal of Ontario

B E T W E E N:

Candice Jensen

Applicant

-and-

Lucijan Ulanowicz

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: February 16, 2011

Citation: 2011 HRTO 335

Indexed as: Jensen v. Ulanowicz

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination in employment, contracts and the provision of goods, services or facilities. She alleges discrimination on the basis of sex (including sexual solicitation), sexual orientation, family status, marital status, age and association with a person identified by a Code-related ground. She also alleges reprisal or threat of reprisal.

2In essence, the applicant alleges that the respondent harassed her and made sexual advances. The respondent denies the allegations and seeks the early dismissal of the Application pursuant to section 45.1 of the Code.

3There is some history between these two parties. According to the police reports filed by the respondent, police were contacted on seven occasions between June 15 and June 29, 2010. Although the applicant complained of criminal harassment in some of these incidents, no charges were laid at the time.

4On October 4, 2010, however, the police issued a summons to the respondent following an information filed by the applicant in which she alleged that the respondent committed criminal harassment between May 1, 2010 and July 10, 2010.

5The parties agree that the Crown ultimately decided not to pursue the charges.

6The respondent argues that the private information and the circumstances surrounding the withdrawal of the charges is a proceeding that appropriately dealt with the substance of the Application. He seeks the early dismissal of the Application on this basis. The applicant objects to the dismissal.

ANALYSIS

7Section 45.1 of the Code provides:

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.

8For section 45.1 to apply, the respondent must demonstrate that:

a. the grievance or the complaint before the College is a proceeding within the meaning of the Code; and

b. either the grievance or the matter before the College has reached its conclusion and has “appropriately dealt with” the substance of the Application.

9The Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1, however, the principal concern is not whether there has been related or parallel litigation, but whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code.

10The parties agree that the issue of harassment was raised with police. However, it is not clear to me that, in addressing the issue of criminal harassment, either the police or the Crown considered or had the jurisdiction to consider the notion of harassment under the Code. Similarly, there is no basis to conclude that the process through which the information was laid and the charges were withdrawn afforded the applicant with an opportunity to have her human rights claim addressed.

11The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject matter of the Application. I cannot conclude that the human rights component of the Application were addressed in the criminal matter.

12I find that the criminal matter did not appropriately deal with the substance of the Application for the purposes of section 45.1 of the Code. In light of this conclusion, it is not necessary for me to determine whether the laying of the private information is a proceeding for the purposes of section 45.1 of the Code.

13The request for dismissal is denied. I am not seized of this matter.