HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Juan Vasquez
Applicant
-and-
Mount Sinai Hospital, Christopher Ross, Ellen Papaikonomou, Maryanna Malfara, Maureen Wong Chong and Robin Singh
Respondents
INTERIM decision
Adjudicator: Ena Chadha
Indexed as: Vasquez v. Mount Sinai Hospital
1The applicant filed an Application on January 27, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability, sex, sexual orientation, association with persons identified by a Code ground, record of offences and reprisal.
Request to Reactivate
2The Application indicated that the facts of the Application were part of on-going grievances. As a result, by way of Interim Decision 2011 HRTO 1352, the Tribunal deferred the Application pending the conclusion of the applicant’s grievance arbitration process.
3On November 23, 2011, the applicant filed a request that the Tribunal reactivate the Application because his grievances have been withdrawn. The applicant attached a letter dated November 3, 2011 from his union advising him that all grievances the union had filed with the respondent employer on behalf of the applicant were being withdrawn from the arbitration process.
4The respondents did not file submissions in response to the request to reactivate.
5Given that the applicant’s grievances have been withdrawn from the arbitration process, it appears that the Application may be reactivated as there are no longer concurrent legal proceedings. Accordingly, the Application is reactivated.
Preliminary Issues
6The previous Interim Decision noted that there were a number of preliminary issues raised by the parties.
7On April 21, 2011, the applicant filed a request to add a personal respondent, his supervisor.
8In their Response, dated May 20, 2011, the respondents requested that the Tribunal dismiss some or all of the Application pursuant to section 45.1 of the Code and/or principles of abuse of process. The respondents’ Response further argues that the applicant has failed to identify and explain how any of the alleged behaviour is related to the discrimination on the basis of disability, sex and record of offences. The respondents oppose the request to add another personal respondent.
9The Tribunal also notes that a review of the Application fails to identify or explain any specifics facts or incidents of alleged discrimination on the basis of association with persons identified by a Code ground.
10In addition, in accordance with Rule 19A of the Tribunal’s Rules of Procedure, there also appears to be an issue of whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application would succeed. The Tribunal does not have the general power to deal with allegations of unfairness. To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, a link between respondents’ alleged actions and the alleged Code ground(s). Having reviewed the Application, it appears that the applicant may be unable to prove such a link with respect to some or all of the alleged grounds.
11As such, the following preliminary issues need to be addressed:
a. Whether the Application is outside the Tribunal’s jurisdiction because the Application does not indicate how the allegations relate to the grounds disability, sex, association with persons identified by a Code ground and record of offences;
b. Whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities that he was discriminated against on the basis of disability, sex, sexual orientation, association with persons identified by a Code ground and record of offences;
c. Whether the Application should be dismissed pursuant to section 45.1 of the Code and/or principles of abuse of process; and
d. Whether it is appropriate to add the applicant’s supervisor as a personal respondent to the Application.
12A Case Assessment Direction will follow this Interim Decision and provide the parties with further directions regarding the nature and scope of the above-noted issues and the process by which the above-noted issues will be addressed by the Tribunal.
Order
13The Tribunal orders that the Application be reactivated.
14I am not seized of this matter.
Dated at Toronto, this 20th day of January, 2012.
”signed by”
Ena Chadha
Vice-chair