HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robin Armstrong Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Revenue and the Ministry of Finance, Marion Crane, Helmut Zissert and Jennette Frost Respondents
INTERIM DECISION
Adjudicator: Ena Chadha Date: August 3, 2012 Citation: 2012 HRTO 1527 Indexed as: Armstrong v. Ontario (Revenue)
WRITTEN SUBMISSIONS
Robin Armstrong, Applicant Katherine Cotton, Counsel
Ministry of Revenue, Ministry of Finance, Marion Crane, Helmut Zissert, Respondents Roslyn Bachioo, Counsel
Jennette Frost, Respondent Ian Werker, Counsel
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on September 2, 2011. The Application alleges discrimination and harassment with respect to employment on the basis of sex (gender).
2The organizational respondent and respondents Crane and Zisser filed a Response on November 3, 2011. In the Response, the respondents request the Tribunal to dismiss the Application, pursuant to section 45.1 of the Code, on the basis that another proceeding has appropriately dealt with the substance of the Application. The respondents submit that the Tribunal should dismiss the Application on the basis that an internal investigation under the organizational respondents’ Workplace Discrimination and Harassment Prevention Policy (“WDHP”) fully examined and addressed the Code issues raised in the Application.
3Respondent Frost filed a Response on November 15, 2011 and submits that parts of the Application as against her are untimely under section 34 of the Code.
Section 45
4The organizational respondent and respondents Crane and Zisser submit that a thorough fact-finding investigation was carried out in response to a WDHP complaint by the applicant against the respondent Frost alleging a poisoned work environment. The investigation was conducted by an independent investigator and substantiated some of the applicant’s allegations.
5A copy of the investigation report was provided to the Tribunal. The respondents assert that the Application should be dismissed, pursuant to section 45.1 of the Code, given the findings of the independent investigator.
6Section 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.
7Section 45.1 is generally considered in two parts: (1) was there another “proceeding” and, (2) if so, did it “appropriately deal with” the substance of the application.
8The Tribunal’s jurisprudence has explained that section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere. See Campbell v. Toronto District School Board, 2008 HRTO 62. In Campbell, supra, the Tribunal stated that a “proceeding” for the purpose of section 45.1 includes, at the very least, an adjudicative process established under a statutory regime.
9Further, the Tribunal’s jurisprudence has held that an internal investigation or internal complaints process does not generally constitute “a proceeding” within the meaning of section 45.1 of the Code. See for example, Maurer v. Metroland Media Group, 2009 HRTO 200; Schuyler v. Ford Motor Company of Canada, 2009 HRTO 855; Robert v. Temagami Co-operative, 2010 HRTO 2256; Byaruhanga v. Toronto Police Services Board, 2010 HRTO 2273 and Cedeno v. Martens, 2012 HRTO 383.
10In the circumstances of this case, I find that the WDHP investigation cannot be found to constitute “a proceeding” as contemplated by section 45.1 of the Code and, therefore, cannot be said to have appropriately dealt with the substance of the Application. While the WDHP investigation may have been conducted by an investigator independent of the workplace, this was an internal investigation. There was no adjudicative process established under a statutory regime triggering specific procedural safeguards.
11Accordingly, the respondents’ request to dismiss the Application pursuant to section 45.1 of the Code is denied.
Section 34
12Respondent Frost requests that the Application be dismissed under section 34 of the Code because the allegations made against her are untimely.
13It appears that some of the allegations may be outside of the Tribunal’s jurisdiction because the Application was filed more than one year after the last incident of discrimination described in the Application. See for example, Thomas v. Toronto Transit Commission, 2009 HRTO 1582.
14Given that it is unclear as to whether or not the Tribunal has jurisdiction over parts of the Application because of issues of delay, the Tribunal will schedule a two hour conference call to hear submissions with respect to the timeliness of some or all of the Application.
Directions
15A two hour conference call will be scheduled for the purposes of hearing the request to dismiss because of delay.
16No later than 21 days prior to the conference call the parties shall deliver to each other and file with the Tribunal written submissions addressing the section 34 issues and copies of any further documents or cases they intend to rely upon.
Dated at Toronto, this 3rd of August, 2012.
Signed by
Ena Chadha Vice-chair