Fan v. Royal Ottawa Health Care Group, 2015 HRTO 1661

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chun Fan

Applicant

-and-

Royal Ottawa Health Care Group and Canadian Union of Public Employees, Local 942

Respondents

DECISION

Adjudicator: Leslie Reaume Date: December 9, 2015 Citation: 2015 HRTO 1661 Indexed as: Fan v. Royal Ottawa Health Group

WRITTEN SUBMISSIONS

Chun Fan, Applicant Self-represented

Royal Ottawa Health Care Group, Respondent Stephen Bird, Counsel

Canadian Union of Public Employees, Respondent Sue Lott, Counsel

Introduction

1The applicant alleges that the respondents engaged in reprisal and discriminated against her because of the ground of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This is the second of two Applications filed by the applicant against Royal Ottawa Health Care Group. The first Application (2013-14871-I) resulted in a Decision dismissing the Application (2015 HRTO 1018) for no reasonable prospect of success. The applicant’s union, which is named as a respondent in the second Application, was an intervenor in the first Application.

3A preliminary hearing was held in relation to the first Application to determine whether the applicant’s allegations should be dismissed for no reasonable prospect of success. For various reasons, I heard both testimony and submissions on this issue. Between the conclusion of the applicant’s testimony and the final submissions, the applicant made a request to amend her first Application to include the allegations contained in the second Application.

4On August 24, 2014 I issued a Case Assessment Direction (“CAD”) denying the applicant’s request. Following the release of the Decision in the first Application, I issued a CAD dated August 10, 2015, inviting submissions from the parties on the Tribunal’s jurisdiction to proceed with the second Application.

5The second Application contains allegations that settlement discussions took place among the parties on June 10 and 11, 2014, during the preliminary hearing into the first Application. The applicant alleges that she was told during those discussions that a settlement could not be achieved unless it also included her human rights Application. The applicant alleges that she found this threatening.

6The parties were advised that the second Application appeared to be outside of the Tribunal’s jurisdiction because it did not contain factual allegations of reprisal or discrimination on the basis of disability. The parties were also advised that there was no requirement to provide them with an opportunity to make oral submissions since it was yet to be determined that the second Application was within the Tribunal’s jurisdiction. Written submissions were received from each of the parties in response to the CAD.

ANALYSIS AND DECISION

7At this preliminary stage in the proceeding, the Tribunal will dismiss an application only if it is “plain and obvious” that it is outside the Tribunal’s jurisdiction.

8It is clear that settlement discussions took place and that the applicant is relying entirely on those discussions to support her allegations of reprisal and discrimination on the basis of disability. These discussions are covered by settlement privilege, which would be also determinative of this Application. However, it is also plain and obvious that the applicant’s allegations are outside the Tribunal’s jurisdiction. The applicant’s materials do not contain any factual allegations of reprisal or discrimination on the basis of disability. Even if I accept that the applicant participated in settlement discussions and was told during those discussions that any settlement would have to include her outstanding human rights Application, it is plain and obvious that this is not an allegation of reprisal or discrimination under the Code. It is a position taken by a party (or both parties) during settlement negotiations which the applicant was free to accept or decline.

9The Tribunal does not have jurisdiction over allegations of general unfairness that are unconnected to a ground protected under the Code. It is plain and obvious that the allegations the applicant has made against the respondents have no connection to any protected ground under the Code. Therefore, the Application is dismissed as it has failed to identify any specific acts of discrimination within the meaning of the Code.

ORDER

10For the reasons set out above, the Application is dismissed as outside the Tribunal’s jurisdiction.