HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donna Ryder
Applicant
-and-
Ryerson University Students’ Union, Palin Foundation and
Ryerson Students’ Centre/Student Campus Centre
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Ryder v. Ryerson University Students’ Union
APPEARANCES
Donna Ryder, Applicant
Self-represented
Ryerson University Students’ Union, Palin Foundation and Ryerson Students’ Centre/ Student Campus Centre, Respondents
Michael Richards and Leslie Frattolin, Counsel
1This is an Application filed on April 26, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and with respect to goods, services and facilities because of disability, age and reprisal or threat of reprisal.
The Application
2The applicant is a student at Ryerson University and was an employee of the organizational respondent, Ryerson Students’ Union (“RSU”) between October 2, 2008 and April 14, 2009, when the RSU terminated the applicant's employment contract. The applicant identifies herself as a person with a disability and alleges that, on several occasions during her employment, the respondents subjected her to harassment because of her disability, failed to accommodate her disability and created a poisoned work environment. In particular, the applicant alleges that Denise Hammond (“Hammond”), a RSU employee and former individual respondent to this Application, disparaged the applicant’s ability to perform her employment duties because of her disability. The applicant also alleges that on one occasion a manager made an anti-Semitic comment and the RSU did nothing to address the incident. The applicant alleges that she requested several meetings to clarify why she was treated badly between April 8 and 14, 2009, and a meeting eventually occurred on June 9, 2009. However, the applicant alleges that the meeting became confrontational and representatives of the RSU stated during this meeting that “age and experience are irrelevant”.
3The applicant states that in June of 2009 she applied for various summer positions with the RSU, but received no replies to her Applications. On June 21, 2009, the applicant states that the RSU was asked about an accessible float for the Pride Parade but no accessible float was provided. The applicant also alleges that a RSU employee made comments to the effect that the applicant was able to travel in her wheelchair and therefore did not require accommodation. Also in August 2009 and again in September 2009 the applicant stated that she requested, through a friend, that the RSU provide an accessible bus for the RSU Parade and Picnic, but received no response and no accessible bus was provided for the event.
4In September 2009, the applicant applied for several positions with the RSU, including three positions with “Rye Access”, but received no reply. The applicant asserts she was denied these employment opportunities because of her disability and because she challenged RSU policies and RSU personnel did not want her hired, which she characterized as a reprisal.
5The Application also describes incidents in which the applicant was denied access to RSU events and premises and also denied services because the RSU banned her personal care attendant from its premises in January, March and April 2010. The applicant also alleges that in February 2010 Hammond denied her the opportunity to assist with presentations for Disability Awareness Week.
Related Legal Proceedings
6On July 20, 2009 the applicant filed a claim with the Ministry of Labour (“MOL”), pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41, claiming unpaid wages, public holiday pay, termination pay and reprisal. An Employment Standards Officer (“ESO”) conducted a fact finding meeting to consider the parties’ positions and evidence. The ESO concluded that the applicant was entitled to termination pay, but found no other violation of the Employment Standards Act, 2000.
7On November 26, 2009, the applicant filed a claim in the Ontario Small Claims Court against Hammond and Toby Whitfield, a former RSU employee and formerly an individual respondent (“Whitfield”), court file numbers SC-09-92660-00 (against Hammond) and SSC-09-92659-00 (against Whitfield) (“the 2009 Small Claims Actions”). Both claims alleged that the defendants defamed the applicant and wrongfully terminated her employment contract. Both claims also alleged that the defendants subjected the applicant to harassment, bullying, discrimination and intimidation. The claim against Whitfield includes allegations that he and Hammond prevented the applicant from obtaining new employment with the RSU.
8On March 12, 2009, the applicant and the defendants settled both 2009 Small Claims Actions and the applicant executed comprehensive releases in favour of the respective defendants.
9On or about April 18, 2011, the applicant filed claims in Small Claims Court, court file numbers SC-11-117026-00 and SC-11-117027-00, against Hammond and Whitfield, respectively (“the contravention claims”). The applicant alleged the defendants breached the terms of the settlements of the 2009 Small Claims Actions when they disclosed the terms of settlement and the release to the Tribunal and provided copies of the Statements of Claim in those matters to the Tribunal in support of the respondents’ position that this Application was barred by the releases executed by the applicant. On or about April 27, 2012, the applicant amended the contravention claims with leave of the Court to remove references to the Application and to the Tribunal and to add allegations that the individual respondents breached the confidentiality terms of the settlements by referring to the settlement in Court and providing a copies of the settlements to the president of the RSU.
Preliminary Issues
10Each of the respondents filed responses on March 9, 2011, in which they raised several preliminary issues. In light of these preliminary issues, the Tribunal issued an Interim Decision, 2012 HRTO 173, addressing several of these issues, and also ordered a one-day preliminary hearing in person to address the following issues:
Whether some parts of the Application are untimely, pursuant to section 34(1) of the Code;
Whether the remaining individual respondents should be removed from the Application;
Whether the Tribunal should dismiss or defer the Application, pursuant to sections 34(11), 45.1 or 45 in light of the civil actions and MOL complaint initiated by the applicant;
Whether the releases the applicant executed in favour of Hammond and Whitfield to resolve the 2009 Small Claims Actions bar the Application as against the individual respondents or whether allowing the Application to proceed would amount to an abuse of process; and,
Whether the Tribunal should permit the applicant to amend the Application to add new allegations against Eric Newstadt (a former individual applicant as against whom the Tribunal dismissed the Application) and, if so, whether he should be reinstated as an individual respondent.
The Tribunal directed the respondents to proceed first regarding whether the Application should be dismissed or deferred, pursuant to sections 34(11), 45 and 45.1 of the Code and whether the releases executed by the applicant bar this Application. The Tribunal also directed the respondents to proceed first regarding whether the individual respondents should continue as individual respondents to the Application. The Tribunal directed the applicant to proceed first regarding the timeliness issue and directed the parties to be prepared to address whether the delay was incurred in good faith and, if so, whether the delay results in substantial prejudice to the respondents. The Tribunal also directed the applicant to proceed first regarding whether the Tribunal should allow her to amend the Application and reinstate Newstadt as an individual respondent. The Tribunal also directed the parties to be prepared to make submissions regarding whether the releases render the Application an abuse of process. The hearing was held on July 26, 2012.
Pertinent Statutory Provisions
11Section 34(1) and (2) of the Code state as follows:
- (1) If a person believes that any of her or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
Section 34(11) of the Code states as follows:
A person who believes that one of her or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,
(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
Section 45 of the Code states as follows:
The Tribunal may defer an application in accordance with the Tribunal rules.
Section 45.1 of the Code states as follows:
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.
Submissions
The Respondents
Section 45.1
12The respondents noted that this Application is one of several proceedings the applicant initiated against the respondents and others. The respondents submitted that the Application raises four issues: (1) overtime; (2) discrimination and harassment in employment; (3) reprisal or discrimination regarding reemployment with the RSU; (4) discrimination in services (i.e., regarding the Pride Parade and RSU Parade and Picnic); and (5) the denial of services and access to RSU premises and events because the RSU banned her personal care attendant.
13The respondents submitted that the complaint to the MOL and Small Claims Court Actions were proceedings that appropriately dealt with the subject matter of the Application, for the purposes of section 45.1 of the Code. The respondents submitted that that MOL claim involved three issues: overtime, termination pay and reprisal, and the “ESO” found the applicant was entitled to overtime pay. The respondents submitted that the Applicant contains allegations of unpaid overtime, reprisal and refers to the termination of the applicant’s employment. Accordingly, the respondents assert that the MOL claim and the Application are based on the same facts and issues. The respondents submitted that the ESO’s decision dealt with the substance of the Application, i.e., the applicant’s employment relationship with the RSU. The respondents argued that the ESO’s investigation amounted to a proceeding, as the officer held a meeting in which the parties, including the applicant, could present their evidence and make submissions. The respondents therefore submitted that the applicant should not be allowed to re-litigate these issues.
14The respondents submitted that the 2009 Small Claims Actions alleged harassment in employment, wrongful termination of employment and reprisal regarding the respondents’ refusal to consider her for job opportunities. The respondents noted that the applicant identified herself as a person with a disability. The respondents submitted that the Application contained the same allegations regarding harassment and the denial of further employment opportunities by the respondents as are set out in the 2009 Small Claims Actions, although the legal characterization in the 2009 Small Claims Actions was different than in the Application. The respondents submitted that the applicant participated in mediation with the individual respondents and settled with both of them only to file the Application about a month later. The respondents submitted that the 2009 Small Claims Actions amounted to proceedings that appropriately dealt with the substance of the Application because the issues were the same and the applicant knew the case she had to meet and had opportunity to do so.
Section 34(11) and Deferral
15The respondents submitted that the contravention claims allege that Hammond and Whitfield breached the terms of settlement to the 2009 Small Claims Actions. The respondents note that the applicant seeks an order from the Small Claims Court granting her either the damages originally sought in the 2009 Small Claims Actions or the right to proceed with those claims as if settlement never took place. Accordingly, the respondents submitted that the contravention claims are a civil proceeding in which the applicant is seeking a remedy under section 46.1 of the Code for the same infringement of her rights as in the Application, since the 2009 Small Claims Actions and the Application are based on the same facts. The respondents therefore submitted that the Application is barred by section 34(11). In the alternative, the respondents submitted that the Tribunal should defer the Application pending resolution of the contravention claims.
The Releases
16The respondents noted that the applicant executed comprehensive releases in favour of Hammond and Whitfield in settlement of the 2009 Small Claims Actions. The respondents submitted that the release language was sufficiently broad to encompass claims under the Code. The respondents submitted that the settlement covered all of the claim, including allegations of harassment and discrimination in employment, wrongful dismissal and reprisal. The respondents submitted that the applicant sued Hammond and Whitfield in their capacities of employees of the RSU as well as personally. Accordingly, the RSU would have been vicariously liable for their actions and could have sought indemnity from them. The respondents submitted that this was why the releases included a paragraph in which the applicant agreed not to initiate any claim against a third party who could claim contribution or indemnity from Hammond or Whitfield. The respondents submitted, therefore, that the applicant had executed a release in which she agreed not to make a claim of any kind regarding the subject matter of the 2009 Small Claims Actions against Hammond or Whitfield or third parties such as the RSU. Consequently, the respondents submitted that allowing the Application to proceed would amount to an abuse of process.
The Applicant
17During her submissions, the applicant stated that she was no longer pursuing the Application against Joel Duff, Chris McNeil and the Continuing Education Students’ Association of Ryerson (“CESAR”). Accordingly, these respondents shall be removed from the Application and the style of cause amended accordingly. The applicant also stated that she was no longer seeking to amend the Application to include new allegations against Eric Newstadt and to have him “reinstated” as an individual respondent. Accordingly, the parties made no submissions on this issue.
Section 45.1
18The applicant submitted that the actions she commenced in small claims court were claims for defamation, civil harassment and breach of contract. Accordingly, these proceedings are concerned with the different issues than her human rights claims and could not have dealt with the substance of the Application. The applicant submitted that the settlement of the 2009 Small Claims Actions relates only to the issues raised in those actions, i.e., defamation. Further, the releases the applicant executed in settlement of the 2009 Small Claims Actions apply only to Hammond and Whitfield. The applicant submitted that she did not bring these actions against the RSU because she did not consider the RSU to be responsible for Hammond's and Whitfield's defamatory behaviour. Consequently, the applicant submitted that the settlements of the 2009 Small Claims Actions did not deal with the substance of the Application.
19The applicant submitted that the MOL hearing dealt with the termination of her employment and the lack of notice provided. The applicant submitted that her allegations of reprisal were under the Employment Standards Act, 2000, not the Code. Accordingly, the applicant submitted that the MOL proceeding did not address human rights issues. The applicant submitted that there is no basis to apply section 45.1 of the Code to this Application.
Section 34(11)
20The applicant submitted that the contravention claims concern the terms of the settlement of the 2009 Small Claims Actions. The RSU is not a party to the contravention claims and the applicant submitted the claims will not deal with human rights issues. The applicant expressed her opinion that the Small Claims Court would not allow her to re-litigate the 2009 Small Claims Actions. She also noted that the contravention claims had been amended to remove references to the Tribunal and human rights issues. As a result, the applicant submitted that the Application is not barred by section 34(11).
The Releases
21The applicant submitted that the 2009 Small Claims Actions involved claims of libel and slander, not Code violations. The applicant acknowledged that she settled these claims with the respective individual respondents, but noted that the organizational respondents were not party to the settlements. The applicant submitted that the confidentiality provision in the releases binds all parties and she appeared to suggest that the respondents could not rely upon the releases as a result. The applicant submitted that the releases estop any further action regarding the allegations set out in the 2009 Small Claims Actions, but not regarding later, unconnected, incidents.
22The applicant submitted the Code has a special status and, as a result, the parties cannot contract out of the Code and cannot contract to suspend the Code. Alternatively, the applicant argued that if parties can contract out of the Code, such a contract must explicitly refer to the Code. The applicant noted that the only statutory reference contained in the release was to the Family Law Act. Accordingly, the applicant submitted that the releases that she executed should not prevent the Application from continuing.
Delay
The Applicant
23The applicant submitted that there had been no delay, as the RSU terminated her employment on April 14, 2009, and she filed the Application on or about April 22, 2010. The applicant also submitted that the last alleged breach of the Code occurred on or about April 13, 2010, and she filed the Application a few days later. The applicant submitted there was therefore no delay and that the Tribunal should not entertain the respondents’ submissions regarding timeliness.
24The applicant submitted that if the Tribunal did find delay, then it was incurred in good faith. The applicant submitted that between the date on which the RSU dismissed her until March 2010, she made several attempts to arrange a meeting to discuss her concerns. The RSU consistently refused to meet the applicant until June 2009. The applicant stated that the meeting became confrontational and RSU personnel in attendance made discriminatory statements to the applicant, including “age and experience are irrelevant”.
25The applicant also submitted that she had been in contact with the Human Rights Legal Support Centre (the “Centre”). According to the applicant, the Centre (the applicant did not identify the person to whom she spoke) advised her not to file the Application until after her MOL complaint and court matters were resolved because she could only file an application after pursuing other remedies. The applicant stated that she is not a lawyer and was unaware of the time limits under the Code and therefore submitted that any delay is attributable to her lack of knowledge and the advice she received from the Centre. The applicant also submitted that her disability causes delays in accomplishing tasks, such as filing an application.
26The applicant submitted that the respondents would suffer no prejudice if the Tribunal permitted the Application to proceed. The applicant submitted that the respondents had filed detailed Responses and would be able to defend their positions.
27With a view to establishing a series of events for the purposes of section 34(1)(b), the applicant recited the alleged incidents set out in the Application. I advised the applicant that this was not sufficient to establish a series of incidents and asked her to describe the nexus or connection between the incidents. The applicant submitted that Hammond and Whitfield were involved in each allegation and the RSU is vicariously liable for their actions.
The Respondents
28The respondents noted that April 26, 2010, was the filing date for the Application; therefore, incidents occurring prior to April 25, are untimely. The respondents noted that the applicant’s allegations date back to October 2008; therefore she would have had to file the Application by October 2009 for all of her employment-related claims to come within the one-year time limit. The respondents submitted that the Tribunal's jurisprudence requires more than an absence of “bad faith” and puts a fairly high onus on an applicant to provide a reasonable explanation for delay in filing an application. The respondent submitted that the Tribunal has no jurisdiction to hear applications outside the statutory limitation period unless the delay, however short, was incurred in good faith.
29The respondents submitted that the applicant did not provide a good faith explanation for the delay in filing her Application. The applicant stated that she tried to meet with the RSU to address her concern and therefore could not file the Application on time. However, the respondents submitted that the Application indicates that RSU personnel met with the applicant on June 9, 2009. The respondents argued that the applicant provided no explanation why she could not file an Application after June 9, 2009 and prior to October 2009.
30The respondents submitted that the applicant has aggressively pursued her rights in other forums. The respondents noted that she was able to file a complaint to the MOL within the six-month time limit prescribed in the Employment Standards Act, 2000 and also issued claims in Small Claims Court within the limitation periods set out in the Limitations Act. Accordingly, the respondents contended that the applicant could have filed the Application on time had she been prudent. The respondents submitted that it was significant that she did not file an Application until the MOL and small claims proceedings were resolved.
31The respondents submitted that if the Tribunal finds the delay to have been incurred in good faith, the respondents will nonetheless be prejudiced in their ability to respond to the Application. The respondents submitted that the majority of the witnesses to the incidents in question are no longer students at Ryerson University or members of the RSU. Further, because of the delay in filing the Application, the respondents did not preserve evidence or make records to preserve witnesses’ memories of the events. The RSU also relied upon the release the applicant executed regarding her employment-related claims and asserted that allowing the Application to proceed against them notwithstanding the release would be prejudicial.
32The respondents submitted that the untimely allegations do not form part of a series of incidents for the purposes of section 34(2) of the Code. The respondents submitted that the Tribunal's jurisprudence requires some connection or nexus between the incidents to form a series and that discrete or separate issues cannot amount to a series. The respondents submitted that the applicant's allegations between October 2008 and April 14, 2009 related to her employment with the RSU, whereas the timely allegations, arising from June 2009 onward, are in respect of her attempts at re-employment with the RSU and services, i.e., the provision of accessible transportation for the Pride Parade and RSU Parade and Picnic and the decision to ban her personal care attendant from RSU premises. The respondents therefore submitted that the untimely allegations are distinct from the incidents that allegedly occurred within the one-year time limit.
Analysis and Decision
Delay
33Section 34(1) of the Code requires an applicant to file an application to the Tribunal within one year of the incident on which the application is based or within one year of the last of a series of incidents. The applicant filed the Application on April 26, 2010; therefore, any incidents occurring before April 26, 2009 are outside the one-year time limit. Accordingly, I must determine whether the incidents allegedly occurring before April 26, 2009 form part of a series of incidents in which the last incident occurred within the one-year time limit, or, if there is no series, whether the delay was incurred in good faith.
34The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621. The Tribunal has also said that incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See Polihronakos v. Mississauga (City), 2010 HRTO 1433.
35The applicant alleges that between October 2008 and February 26, 2009, she was subjected to harassment and discrimination because of her disability while employed by the RSU. The applicant submitted that the RSU terminated her employment on April 14, 2009 and she filed the Application on April 22, 2010. The filing date of an application is the date on which the Tribunal receives it, which in this case was April 26, 2010. In any event, the date of the applicant’s dismissal from the RSU would be outside the one-year time limit even if it was filed on April 22, 2010.
36The first incident in the Application that comes within the one-year time limit was a meeting held on June 9, 2009 with three members of the RSU. The applicant states that she requested the meeting to discuss why the RSU and its personnel had treated her poorly between April 8 and April 14, 2009. Other than the termination of the applicant’s employment on April 14, 2009, the Application contains no details regarding this allegation of poor treatment. While the Application alleges that the termination of her employment was a violation of the Code (in response to question A9 on the Application form regarding Alleged Discrimination in Employment), the Application does not indicate the prohibited ground(s) of discrimination that are connected to the dismissal. She states that the meeting was confrontational and she was informed that “age and experience are irrelevant”. This statement may amount to discrimination or harassment because of age. However, the applicant’s allegations pre-dating April 26, 2009 were of harassment and discrimination because of disability. The fact that the meeting was held to discuss what may have been discriminatory conduct does not render the meeting itself an incident of discrimination. As noted above, the Tribunal has found that incidents based on different grounds of discrimination cannot form a series for the purposes of section 34(1)(b).
37The incidents occurring after June 9, 2009 relate to the respondents’ decision not to hire her for new employment (which she characterized as a reprisal), and to the provision of goods services or facilities (the Pride Parade and RSU Parade and Picnic and banning her personal care attendant from RSU premises). Consequently, these incidents involve different facts; a different ground of discrimination (reprisal); and, in respect of the Pride Parade and RSU Parade and Picnic and banning of her attendant, different social areas of discrimination than the incidents occurring before April 26, 2009. As a result they lack the requisite nexus or connection to form a series.
38Having found no series for the purposes of section 34(1)(b), I must consider whether the delay was incurred in good faith. The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:
In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.
In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.
39The applicant's explanation for the delay in filing the Application was that she was attempting to resolve the dispute with respondents informally, her disability caused her delays in completing tasks and she received advice from the Centre to the effect that she should wait to file an application to the Tribunal until the completion of other proceedings. However, the applicant gave no indication of any attempt to resolve the dispute after June 9, 2009 and also initiated a complaint to the MOL and Small Claims Court Actions in 2009 within the prescribed time limits in those forums, notwithstanding her disability. The applicant also provided no medical evidence supporting her assertion that her disability prevented her from filing the Application in a timely manner.
40The Tribunal has stated on several occasions that waiting for the outcome of other processes does not amount to a good-faith reason for delay. See Ramnath v. Peel Regional Police 2010 HRTO 548, Pasley v. Revera Long Term Care Inc., 2012 HRTO 888, and Meriano v. Benteler Automotive, 2010 HRTO 1551. The applicant stated that the Centre gave her advice that was contrary to the Tribunal’s jurisprudence in this regard. However, the mandate of the Centre is to offer human rights legal services to individuals throughout Ontario who have experienced discrimination contrary to the Code. These services include legal assistance in filing applications at the Tribunal, and legal representation at mediations and hearings. The Centre, therefore, specializes in the human rights law of Ontario and regularly represents applicants before the Tribunal. Consequently, the applicant’s assertion that the Centre gave her legal advice that was entirely inconsistent with the Tribunal’s jurisprudence is a very significant allegation that requires a concomitant amount of proof. The applicant offered no particulars regarding this allegation beyond her bare assertion and I am not prepared to accept the applicant’s assertion that she received such advice from the Centre in these circumstances. I find that the applicant has not provided a good-faith explanation for her delay in filing Application. The allegations based on incidents allegedly occurring prior to April 26, 2009 are dismissed.
Sections 45.1 and the Releases
41As I have dismissed the allegations based on incidents occurring prior to April 26, 2009, it is unnecessary to consider whether these allegations should be dismissed pursuant to section 45.1 or 34(11) or whether they are barred by the releases the applicant executed in favour of the individual respondents. It is also unnecessary for me to consider whether the MOL complaint appropriately dealt with any aspect of the Application, because the MOL complaint dealt with employment related matters that arose prior to April 26, 2009.
42The Supreme Court of Canada recently dealt with the interpretation of section 27(1)(f) of the British Columbia Human Rights Code (the “B.C. Code”) in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52. Section 27(1)(f) of the B.C. Code is nearly identical to section 45.1 of the Code.
43The Supreme Court of Canada found that section 27(1)(f) of the B.C. Code is intended to ensure finality in decision making and to avoid re-litigation of issues. In assessing whether the substance of a complaint has been appropriately dealt with in another proceeding, the Court stated that a Tribunal should ask itself two questions:
“…whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process mirrored the one the Tribunal prefers or uses itself…” (at paragraph 37).
The Tribunal has found that the analysis adopted in Figliola applies in Ontario and binds the Tribunal. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, at paragraph 25.
44The Tribunal has also found that settlements in other forums can be a proceeding for the purposes of section 45.1 of the Code. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 27.
45In my view, the settlements of the 2009 Small Claims Actions were proceedings for the purposes of section 45.1. The applicant was aware of the case she had to meet and had the opportunity to proceed to a hearing. The claim against Whitfield included allegations that the individual respondents prevented the applicant from being considered for employment opportunities with the RSU, which is an allegation repeated in the Application. In the 2009 Small Claims Action against Whitfield, the allegation is characterised in terms of defamation and in the Application in terms of reprisal. In either case, the applicant alleged that RSU employees intentionally prevented the applicant from securing new employment with the RSU. The applicant chose to settle this issue, along with the other aspects of the 2009 Small Claims Actions. In these circumstances, I find that the settlement of the claim against Whitfield was a proceeding that dealt with the substance of the allegation that the respondents prevented the applicant from being hired by the RSU.
46The Statements of Claim that commenced the 2009 Small Claims Action do not contain any allegations regarding the provision of accessible services for the Pride Parade or the RSU Parade and Picnic or regarding the decision to ban the applicant’s personal care attendant from RSU premises. Consequently, I find that these issues have not been appropriately dealt with by the settlement of the 2009 Small Claims Actions. Similarly, I find that the releases the applicant executed in settlement of the 2009 Small Claims Actions do not bar these aspects of the Application and allowing the applicant to proceed with these allegations is not an abuse of process.
Order
47The Tribunal orders as follows:
The allegations based on incidents occurring prior to April 26, 2009 are dismissed;
The allegations that the respondents prevented the applicant from securing new employment with the RSU are dismissed; and,
Joel Duff, Chris McNeil and CESAR are removed as respondents to the Application and the style of cause amended accordingly.
48The Application shall be returned to the Registrar for processing.
Dated at Toronto, this 13th day of December, 2012.
“Signed by”
Douglas Sanderson
Vice-chair