Fernandez v. Tomas, 2013 HRTO 2074

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jude Fernandez

Applicant

-and-

Vito Tomas

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: December 16, 2013 Citation: 2013 HRTO 2074 Indexed as: Fernandez v. Tomas

WRITTEN SUBMISSIONS

Jude Fernandez, Applicant

Self-represented

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Initially the Application alleged discrimination with respect to employment because of reprisal.

2The applicant is a bus driver. He alleged that following a customer complaint, the respondent (a manager or supervisor of drivers) reproached him for taking too many bathroom breaks on his route, thereby causing the bus to run late.

3Because the narrative in the Application did not disclose an incident of reprisal within the meaning of the Code, the Tribunal sent the applicant a Notice of Intent to Dismiss. That letter explained that reprisal entails claiming or enforcing a right under the Code, instituting or participating in proceedings under the Code or, refusing to infringe the right of another person under the Code. The applicant was directed to explain how the events he describes amount to a reprisal. He then provided further information, but it did not clarify the issue of reprisal.

4In Interim Decision 2013 HRTO 1827 the Tribunal provided him with an opportunity to amend his Application by explaining the basis on which he was claiming a Code violation. He responded by providing a letter that asserts he was discriminated against and harassed at work on the basis of a perceived disability. In addition, the letter again asserts reprisal. This time it says that the basis for the allegation of reprisal is that the respondent threatened to write him up for insubordination if he filed a grievance under the collective agreement about the respondent’s conduct.

5The applicant has provided particulars which may support allegations of harassment and discrimination on the basis of a perceived disability, and these allegations may proceed in the Tribunal’s process.

6In relation to the alleged reprisal, the applicant does not explain what the subject matter of the grievance would have been. As a result it is still unclear whether this might amount to a reprisal because the applicant exercised his rights under the Code. At this stage it is appropriate and efficient to allow this allegation to also proceed in the Tribunal’s process. Once more particulars are provided by the parties, the Tribunal may revisit whether it has jurisdiction to deal with this allegation.

order

7The applicant’s letter of November 5, 2013 is accepted as an amendment to his Application.

8The Registrar is requested to provide the respondent with this Interim Decision, along with a copy of the Application, the applicant’s letter of November 5, 2013, and Interim Decision 2013 HRTO 1827.

9The respondent will have an opportunity to respond to this Application in accordance with the Tribunal’s Rules of Procedure. The respondent will have 35 days from the date of this Interim Decision to provide a complete Response.