HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Douglas Humphrey Applicant
-and-
Community Living Huntsville, Laurel Shaw, Tracey Kuusk, Cathy Stroud, Judith Ruan, Judy Fulton-Hines, Ralph Jones, Gundy Upans, Scott Hayden, Jim Kitching, Linda McEachern, Doug Sullivan, Cheryl Ogston, Debbie Kirwin, Alana Hall, and Jessica Walton Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee Date: June 7, 2012 Citation: 2012 HRTO 1130 Indexed as: Humphrey v. Community Living Huntsville
WRITTEN SUBMISSIONS
Douglas Humphrey, Applicant ) Self-represented
INTRODUCTION
1The purpose of this Interim Decision is to decide if the Application should be dismissed at a preliminary stage on the basis that it does not fall within the Tribunal’s jurisdiction.
BACKGROUND
2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 13, 2011, which alleged that the respondents discriminated against him with respect to employment because of a record of offences, and subjected him to reprisals. He subsequently filed a number of further submissions which alleged that the violations of the Code were ongoing and culminated in the termination of his employment.
3According to the applicant, Laurel Shaw, Tracey Kuusk and Cathy Stroud were a supervisor, the Director of Human Resources and the Executive Director of the organization respondent, respectively, and the other individual respondents were members of the Board of Directors.
4On February 15, 2012, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss (“NOID”), which informed the applicant that the Application against certain of the named respondents (the Board members) may be outside of the Tribunal’s jurisdiction because the Application and the narrative setting out the incidents of alleged discrimination fail to identify any specific acts of discrimination committed by those individuals. The Tribunal invited the applicant to provide written submissions to explain how each of those individual respondents is alleged to have breached the Code.
5The NOID also informed the applicant that the Application appears to be outside the Tribunal’s jurisdiction because (a) he failed to describe how the respondents’ behaviour was related to discrimination on the basis of a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect of any provincial enactment, and (b) he failed to explain how the respondents’ behaviour was related to claiming or enforcing a right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 under the Code.
6On April 24, 2012, the applicant filed written submissions in response to the NOID. Based on the Application and all of the applicant’s submissions, his allegations of discrimination and reprisal may be summarized as follows:
Ms. Shaw directed employees, including the applicant, to read, sign and return a package of documents, which required them to disclose all charges or convictions under the Criminal Code and the Highway Traffic Act. When the applicant asked Ms. Kuusk if he could lose his job because he was convicted of an offence under the Highway Traffic Act, she responded: “Maybe”.
After the applicant told Ms. Stroud and a Board member that the requirement to sign the documents and Ms. Kuusk’s comment were a violation of privacy legislation and the Code, Ms. Stroud, at the behest of the Board, subjected him to a series of reprisals, including disciplining him and terminating his employment.
ANALYSIS
7Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an application that is outside the jurisdiction of the Tribunal. Rule 13.2 further states that where it appears to the Tribunal that an application is outside its jurisdiction, it shall, prior to sending the application to the respondent, issue a Notice of Intent to Dismiss the Application. The Notice is only sent to the applicant, and requires him or her to file written submissions. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within its jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.
8In my view, it is not plain and obvious at this preliminary stage that the Application is outside the Tribunal’s jurisdiction. With respect to the applicant’s allegation that Ms. Kuusk stated that he may be fired because he was convicted of an offence under the Highway Traffic Act, this appears to fall within the definition of “records of offences” in s. 10(1) of the Code:
“record of offences” means a conviction for,
(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or
(b) an offence in respect of any provincial enactment; [Emphasis added]
9With respect to the applicant’s allegation that Ms. Stroud, at the behest of the Board, subjected him to a series of reprisals, including disciplining him and terminating his employment because he claimed his rights under privacy legislation and the Code, this appears to fall within the definition of reprisal in section 8 of the Code:
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 for so doing. [Emphasis added]
10With respect to the applicant’s naming of specific Board members as individual respondents, he alleged that they breached the Code by directing Ms. Stroud to discipline him and terminate his employment because he claimed his rights under the Code.
11This is not a final decision with respect to the issues raised in the NOID. The Tribunal shall serve the Application, all of the applicant’s written submissions, and a copy of this Interim Decision on the respondents.
12I have noted from the applicant’s materials that some of his allegations appear to have been settled in a grievance process. In their Response, the respondents should therefore address whether the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Code because another proceeding has in whole or in part appropriately dealt with the substance of the Application, and/or because it is an abuse of the Tribunal’s process. If there is an ongoing grievance process, the respondents should also address whether the Tribunal should defer the Application until the grievance process is completed. The applicant may address these issues in his Reply.
13I am not seized of this matter
Dated at Toronto, this 7^th^ day of June, 2012.
“Signed by”
__________________________________
Ken Bhattacharjee
Vice-chair