HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dinorah Martinez-Cedeno
Applicant
-and-
Elizabeth Ann Martens
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Cedeno v. Martens
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on June 28, 2011. The Application alleges discrimination and harassment with respect to employment, on the basis of race and colour.
2The respondent filed a Response on October 10, 2011 denying the allegations. In the Response, the respondent requests 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.
3The respondent indicates that the parties’ employer, Centennial College, instituted a fact-finding investigation in response to a complaint launched by the applicant against the respondent alleging harassment and discrimination in the workplace. The investigation was conducted by an independent investigator who determined that there was insufficient evidence to substantiate the applicant’s allegations. The respondent provided a copy of the investigation report and asserts that the Application should be dismissed given the findings of the independent investigator.
4On October 26, 2011, the applicant filed a Reply to the respondent’s Response, providing a copy of a submission she made in the internal investigation process criticizing the investigator’s findings and what took place during the investigation.
5Section 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.
6The 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.
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.
8In 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. Further, 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.
9In the circumstances of this case, given that there was only an internal investigation conducted, no other proceeding can be said to have appropriately dealt with the substance of the Application.
10Accordingly, the respondent’s request to dismiss the Application is denied.
Dated at Toronto, this 24th day of February, 2012.
”signed by”
Ena Chadha
Vice-chair