Jeffrey Rollin v. Nello Decarli, 2009 HRTO 2063

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Rollin

Applicant

-and-

Nello Decarli

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: November 30, 2009 Citation: 2009 HRTO 2063 Indexed as: Rollin v. Decarli

INTRODUCTION

1The applicant filed an Application with the Tribunal pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment on the basis of “record of offences.” In the Application, the applicant alleges that the respondent dismissed him upon his return from a sick day which he took because he had a migraine. He claims that this sick day was the only one he took in his ten months of employment.

2The respondent filed a Response seeking an early dismissal of the Application. The respondent submits that the Application does not disclose discrimination related to a protected ground under the Code, and, therefore, the Tribunal does not have jurisdiction over the Application. The respondent argues that “record of offences” is the ground indicated in the Application, but there is no mention anywhere in the Application of discrimination or harassment because of record of offences as defined by the Code.

3In the Response, the respondent also requests that the personal respondent, Nello DeCarli, be removed as a party to this proceeding, and replaced with the corporation, Wilkinson Chutes Canada which Mr. DeCarli represents in his capacity as Vice-President. Mr. DeCarli asserts that he acted within the course and scope of his employment with the corporation.

4The Tribunal served the Response on the applicant and then on September 16, 2009 issued a Notice of Intent to Dismiss. The Notice warned the applicant that it appeared the Application may be outside the Tribunal’s jurisdiction because the Application did not indicate how the circumstances he described came within the ground of “record of offences” as defined by the Code. The Notice of Intent to Dismiss invited the applicant to make written submissions explaining why he believes the Application is within the Tribunal’s jurisdiction.

5On October 21, 2009, the applicant filed submissions. In his submissions, the applicant appears to say that he was terminated for being sick which he alleges is discrimination within the meaning of the Code. The applicant did not address the request to remove Mr. DeCarli as a respondent, and replace him with the corporation, Wilkinson Chutes Canada.

REQUEST FOR EARLY DISMISSAL

6Section 5 of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of record of offences, amongst other grounds. Record of offences is defined in the Code as follows:

“record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

7Based on the information set out in the Application and the submissions made, it does not appear that the alleged actions of the respondent come within the ground of “record of offences” as covered by the Code. The applicant does not assert that he has any conviction and accordingly the Application does not disclose a claim of discrimination on the basis of record of offences.

8However, having regard to the material before me, there may be a question of whether or not the allegations relate to some other ground under the Code, particularly disability. At this stage, it is not plain and obvious that the Application does not fall within the Tribunal’s jurisdiction, and dismissing the Application would be premature.

DIRECTIONS

9The applicant may deliver to the respondent and file with the Tribunal a Request for Order During Proceedings to amend his Application, citing a different ground and providing sufficient particulars. If the applicant chooses to seek this amendment, he must do so within two weeks of this Interim Decision. Also, he must attach to his Request for Order During Proceedings an amended Form 1A, complete the general sections of that Form and, if claiming discrimination based on disability, respond to questions A15 to A21. If the applicant does not seek to amend his Application, the Tribunal will consider the Request for early dismissal on the basis of the material before it.

10At the same time, the applicant is directed to deliver to the respondent and file with the Tribunal his response to the request that the individual respondent should be removed and replaced with the organization respondent.

11The respondent may respond to any Request for Order During Proceedings in accordance with the Tribunal’s Rules. The Tribunal will consider the submissions before deciding to dismiss or proceed with the Application.

12The applicant may wish to consult the Applicant’s Guide, available on the Tribunal’s website, www.hrto.ca, or from the Registrar’s office. Pages 2-3 of the Guide set out sources of assistance that may be available to him.

13I am not seized.