Granes v. 2389193 Ontario Inc., 2015 HRTO 983

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

De Anna Granes

Applicant

-and-

2389193 Ontario Inc., Houston Canada Inc., and Rajneesh Dutta

Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: July 23, 2015 Citation: 2015 HRTO 983 Indexed as: Granes v. 2389193 Ontario Inc.

1This Interim Decision addresses whether or not the Application should be dismissed pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application alleges discrimination with respect to employment because of sex, including sexual harassment and sexual solicitation, contrary to the Code.

3The respondents 2389193 Ontario Inc. and the personal respondent have filed a joint Response, denying the allegations against them. The respondent Houston Canada Inc. (“Houston”) has filed a separate Response denying the allegations against it. The respondents request that the Tribunal dismiss the Application pursuant to section 45.1 of the Code because of a police investigation that was conducted into the applicant’s allegations. The police investigation resulted in no criminal charges being laid against the personal respondent.

4When delivering the Responses to the applicant, the Tribunal requested that the applicant file submissions addressing the respondents’ request to dismiss the Application pursuant to section 45.1 of the Code. The applicant did this within the body of the Reply that she filed.

5Subsequent to receiving the Reply, the Tribunal sent a letter to the parties requesting that the respondents file submissions in relation to the section 45.1 of the Code issue. The respondents 2389193 Ontario Inc. and the personal respondent filed submissions, and the respondent Houston filed separate submissions.

The applicant’s submissions

6The applicant submits that the police investigation is not a “proceeding” for the purposes of section 45.1 of the Code and cites a Tribunal decision in support of her position. Furthermore, she submits that it is not an adjudicative process established under a statutory scheme, there is no guarantee of procedural fairness and no impartial adjudicator. The police conduct the investigation and the Crown, she submits, determines whether or not the charges are brought forward to trial.

7Finally, she submits that the police were considering the allegations from a criminal perspective, rather than from a civil perspective.

2389193 Ontario Inc. and the personal respondent’s submissions

8The respondent 2389193 Ontario Inc. and the personal respondent submit that the Application should be dismissed pursuant to section 45.1 of the Code. They submit that the police investigation is a “proceeding” within the meaning of section 45.1 and refer to a Tribunal decision, Fernando v. Toronto Police Services Board, 2010 HRTO 2324 at paras. 18 – 21 (“Fernando”), in support of their position.

9Furthermore, they submit that the allegations in the Application arise from the same facts that provided the basis for the police proceeding. The allegations were “appropriately dealt with” because the police conducted an investigation, determined that there was no video evidence in support of the allegations, and no witnesses to the allegations. They place significant emphasis on the fact that the 13 surveillance cameras which are located in and around the restaurant do not support the applicant’s allegations, which, they allege, are fictitious and a clever plan to extort money.

The respondent Houston’s submissions

10The respondent Houston also submits that the Application should be dismissed pursuant to section 45.1 of the Code. It submits that the police involvement and subsequent investigation dealt with the substantive issues of the Application. The involved police force represented an impartial third party.

law and analysis

11Section 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.

12In considering section 45.1, the Tribunal has considered: (1) was there another proceeding; and (2) if so, did it appropriately deal with the substance of the application? See, Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 64. It has recognized that section 45.1 is discretionary.

13I cannot find that a police investigation, which ultimately decided not to lay criminal charges against the personal respondent, is a “proceeding” within the meaning of section 45.1 of the Code. A criminal process does not involve the same parties, as charges are pursued by the Crown on behalf of Her Majesty the Queen, rather than the alleged victim. There is no trial and no opportunity to examine witnesses. There is no ability for the criminal process to provide human rights remedies. See Sutton v. Jarvis Ryan Associates, 2009 HRTO 1072 at para. 5 and Martinez v. Peel Police Services Board, 2008 HRTO 434 at para. 6.

14Fernando, a case relied upon by the respondents 2389193 Ontario Inc. and the personal respondent, is distinguishable from the circumstances of this Application. In Fernando, the “police investigation” at issue was a complaint an applicant filed against the respondent with the then Ontario Civilian Commission on Police Services (“OCCPS”) under the Police Services Act and the investigation into that complaint, and not whether or not criminal charges would be laid against an individual.

15Similarly, in Rush v. City of Richmond, 2008 BCHRT 62, and Vilella v. City of Vancouver (No. 3), 2005 BCHRT 405, decisions relied upon by the respondent 2389193 Ontario Inc. and the personal respondent, the British Columbia Human Rights Tribunal (“BC Tribunal”) in separate decisions dismissed complaints where an arbitrator had issued decisions based upon the same fact situations as before the BC Tribunal. In this Application, there is no decision issued by an arbitrator.

16Accordingly, I cannot find that section 45.1 of the Code is triggered in the circumstances of this case.

17Alternatively, I decline to exercise my discretion, under section 45.1 of the Code to dismiss the Application because of the police investigation.

18The Tribunal offers mediation to parties before it, which is a voluntary process. While none of the respondents have agreed to participate in mediation, if, upon receiving this Interim Decision, they are now agreeable to participate in mediation, they are to email the Tribunal, copying the other parties, expressing their interest in attending mediation.

19If the respondents have not communicated with the Tribunal by August 4, 2015 at 5:00 p.m., the Application will proceed to the next stage in the Tribunal’s process, which is to be scheduled for a 2 days hearing.

20I am not seized with this matter.