HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Brian Liszewski
Applicant
-and-
Professional Institute of the Public Service of Canada and Tom Pocrnick
Respondents
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Liszewski v. Professional Institute of the Public Service of Canada
WRITTEN SUBMISSIONS
Brian Liszewski, Applicant
Self-represented
Tom Pocrnick, Respondent
Self-represented
Introduction
1This is an Application filed on March 30, 2016 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a vocational association because of sexual orientation. The applicant alleges the respondent, Tom Pocrnick (“the individual respondent”), made two homophobic comments to or about him, the first in a September 11, 2015 e-mail from the individual respondent to the applicant and the second in a September 11, 2015 e-mail from the individual respondent to human resources. The applicant received a copy of the e-mail from human resources in March, 2016.
2The individual respondent filed a Response on September 6, 2016 denying the allegations. In his Response, the individual respondent requests that the Tribunal 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. The individual respondent also filed a letter to him from the respondent, Professional Institute of the Public Service of Canada (“PIPSC”), dated September 16, 2015 advising that if he did not cease making comments to the applicant as the applicant alleged, the matter would be referred to a Panel of Peers as an allegation of misconduct. The individual respondent submits that the applicant made a formal complaint to PIPSC and once all the evidence was reviewed, PIPSC sent him a letter warning of inappropriate language and respectful communication.
3The individual respondent further submits that in May, 2016 the applicant made a formal complaint to the Sunnybrook Human Resources department accusing him of being homophobic. The individual respondent submits that his manager and a Human Resources representative met with him and his union steward for a one hour formal investigation, during which he was interrogated about the alleged comments. The individual respondent submits the outcome of the investigation was that the applicant acted inappropriately by making derogatory comments against him in the workplace. The individual respondent states he was given a letter of counsel for his human resources file with respect to his use of inappropriate language in the workplace.
4The individual respondent submits this Application against him should be dismissed because the issue has been appropriately dealt with by the investigations undertaken by PIPSC and Sunnybrook.
5PIPSC also filed a Response, but did not take any position with respect to the individual respondent’s request to have this Application dismissed because another proceeding had appropriately dealt with the issue.
6PIPSC states that the applicant filed a formal harassment complaint on February 3, 2016, which was forwarded to a Panel of Peers. The Panel of Peers wrote to the applicant on March 29, 2016 advising that in its opinion his complaint was appropriately dealt with by PIPSC’s September 15, 2016 letter to the individual respondent because after he received PIPSC’s letter, the individual respondent made no further comments.
Analysis and Decision
7Section 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.
8The 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 (“Campbell”) and British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52.
9Section 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.
10In Campbell, above, 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.
11In 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.
Order
12The individual respondent’s request to dismiss the Application is denied.
13I am not seized of this matter.
Dated at Toronto, this 2nd day of December, 2016.
“Signed By”
Dawn J. Kershaw
Vice-chair