Gary Rockley v. Bill Cradock, 2009 HRTO 143

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Rockley

Applicant

• and-

Bill Cradock

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: February 9, 2009

Citation: 2009 HRTO 143

Indexed as: Rockley v. Cradock

1This Interim Decision addresses the respondent’s request that this Application be dismissed pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), on the basis that another proceeding has appropriately dealt with the subject-matter of the Application.

1The applicant alleges that in May, 2008, he was absent from work because of a knee condition. He alleges that after he recovered, the respondent reduced his hours of work and informed him there was a problem with his “attitude”. He also alleges that, on September 19, 2008, the respondent essentially dismissed him by removing the use of a company van that he had used for several years as transportation to get to work.

2On his form, the applicant marked the box for “reprisal”. However, upon a review of his narrative, it is apparent that the Application alleges discrimination on the basis of disability and the Tribunal will treat it as relating to the ground of disability.

3The respondent asks that the matter be dismissed under s. 45.1, which reads as follows:

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.

He states that the applicant made a claim to the Ministry of Labour for termination pay and vacation pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), and that the respondent settled this claim by making the requested payments. He alleges that “the applicant has already been reimbursed for any alleged monies owing as a result of or relating to the dismissal” and that “another Tribunal has already dealt with these issues”. He makes no allegation that the applicant signed a release when the monies were paid.

4I find that the ESA proceedings did not deal with the substance of this Application. They addressed the payment of vacation pay and severance pay, which are statutory entitlements under the ESA. This Application alleges that the reduction of the applicant’s hours of work and dismissal were discriminatory on the basis of disability, contrary to s. 5 of the Code. The reasons for the termination and whether they were discriminatory were in no way part of the applicant’s ESA claim. If this Application is successful, the ESA payments made by the respondent might be taken into account in determining the appropriate remedy, but would not necessarily or likely be the only remedy awarded.

5Having determined that the ESA proceedings did not deal with the substance of the Application, there is no need to decide whether they did so “appropriately”. The request for dismissal under s. 45.1 is denied and the Application shall be scheduled for hearing.

6I am not seized of this matter.