Rick Damphouse v. Canadian Union of Public Employees and The Corporation of the City of St. Thomas, 2013 HRTO 148

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rick Damphouse

Applicant

-and-

Canadian Union of Public Employees and The Corporation of the City of St. Thomas

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: January 28, 2013

Citation: 2013 HRTO 148

Indexed as: Damphouse v. Canadian Union of Public Employees

WRITTEN SUBMISSIONS

Rick Damphouse, Applicant

Self-represented

1The applicant filed this Application on November 16, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal with respect to membership in a vocational association.

2The applicant alleges that the respondent employer promised accommodations to prevent his contact with, and avoid close proximity to, an individual who the applicant alleges previously harassed him. The applicant alleges that upon his return to work the respondent employer took away the accommodations and when he contested this he was told that he would be fired. The applicant alleges that he requested to work in a different department; however he was placed back into the poisoned work environment. The applicant alleges that the respondent union was involved in the accommodation arrangements and did not provide him with assistance when he raised concerns about the accommodation.

3On December 18, 2012, the Tribunal issued to the applicant a Notice of Intent to Dismiss (“NOID”) indicating that it appeared that the Application is outside of the Tribunal’s jurisdiction because the narrative fails to specific any specific acts of discrimination committed by the respondents and that the Application fails to explain how the respondents behaviour was related to claiming or enforcing a right under the Code.

4The applicant filed submissions on January 17, 2013 detailing a chronology of the alleged events and particularizing his concerns regarding the respondent employer’s alleged mistreatment since his return to work and the respondent union’s alleged actions towards him, including ignoring his accommodation needs and refusing to provide copies of notes.

DECISION

5An application will only be dismissed at a preliminary stage, before it is delivered to respondent parties, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application.

6The section of the Code that is relevant to this Application is:

Reprisals

8. 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.

7The NOID noted that the Application may fall outside the Tribunal’s jurisdiction because the factual basis for the applicant’s allegations of reprisal was unclear.

8The applicant alleges that he believes his rights were violated because he was forced back into a poisoned work environment by the respondents. The applicant’s narrative and written submissions indicate that he was absent from work on stress leave from January 2012 until October 2012. The applicant indicates that on October 1, 2012 he attended a meeting with the respondent employer and respondent union regarding his return to work accommodation. The applicant notes that at this time there was an open investigation regarding his complaint of harassment against another employee and that the accommodation discussions involved limiting the contact between the applicant and the alleged harasser. The applicant alleges that on October 15 and 17, 2012 and November 1, 2012, the respondent employer disregarded this accommodation.

9The applicant alleges when he texted the union representative about his discomfort and wish to call in sick to work, she responded by telling him to go to work and that her memory of the accommodation was not the same as his. The applicant alleges that he expressed concerns to the union representative about being put back in the same environment. The applicant also alleges that the union representative refused his request for a copy of her notes of the October 1, 2012 accommodation meeting. The applicant alleges that when he requested copies of the notes, the union representative told him that he was on a rant.

10Having considered the applicant’s explanation of his allegations, I find that it is not plain and obvious that the Application does not raise matters covered by the Code. As such, without making any findings with respect to the merits of allegations and any potential jurisdictional issues, I am satisfied based on the applicant’s supplementary submissions that it is not plain and obvious on the face of the Application that it does not fall within the Tribunal’s jurisdiction.

11Accordingly, the Tribunal will continue to process the Application. The Application, the accompanying documentation, the NOID and the applicant’s submissions will be delivered to the respondents and the respondents will be given an opportunity to file Responses.

12This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application, nor any indication of the merits of the Application.

DIRECTIONS

13The Tribunal directs as follows:

i. The Tribunal will continue to process the Application;

ii. Along with this Interim Decision, the Tribunal will deliver a Notice of Application, a copy of the NOID and the applicant’s submissions to the respondents;

iii. The respondents are required to file their Responses (Form 2) to the Application no later than 35 days after the Tribunal sends a copy of this Interim Decision and the accompanying documents and the respondents are directed to indicate in their Responses if they are willing to participate in mediation;

iv. The applicant is required to file a Reply (Form 3) no later than 14 days from receipt of the Responses and is directed to indicate in the Reply if he is willing to participate in mediation;

v. The Tribunal will consider the parties’ materials and may provide further directions, determine any issues and future steps accordingly.

14I am not seized.