Gustavo Quiroga v. Filici Immigration Services Inc. and Vilma Filici, 2009 HRTO 2142

Human Rights Tribunal of Ontario

B E T W E E N:

Gustavo Quiroga

Applicant

-and-

Filici Immigration Services Inc. and Vilma Filici

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 10, 2009

Citation: 2009 HRTO 2142

Indexed as: Quiroga v. Filici Immigration Services

1This Interim Decision addresses the respondents’ Request for an Order during Proceeding seeking the dismissal of the Application pursuant to s. 45.1 of the Ontario Human Rights Code (the “Code”) on the basis that the substance of the Application has been appropriately dealt with by a decision under the Employment Standards Act, 2000, S.O. 2000, c.14, as amended.

2The Application in this matter was filed on June 25, 2009. It relates to a complaint filed with the Ontario Human Rights Commission on January 7, 2008 alleging discrimination in employment on basis of sexual orientation. The applicant alleges that the personal respondent made life intolerable for him and other workers, by yelling, putting people down, throwing things. There is only one reference to his sexual orientation. The applicant quit in December 2007 because of the behaviour of the personal respondent.

Request to Dismiss Under Section 45.1

3Section 45.1 of the Code provides 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.

4The issue for this Tribunal is whether another proceeding has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

5It is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. With regard to the second issue, the Tribunal may consider whether the application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.

6The applicant made a claim for termination pay and vacation pay under the Employment Standards Act, claiming that he had been constructively dismissed. His allegations are virtually the same as those in the human rights Application.

7An employment standards officer issued a written decision on July 22, 2009 determining that the applicant had not been constructively dismissed and was not entitled to termination pay or vacation pay. Part of the analysis appears to have been that other employees agreed that the personal respondent was difficult with everybody, from which the officer appears to have concluded that the personal respondent was not making his life miserable enough to quit, as other employees did not quit.

8In any event, there is no suggestion in the decision that the officer considered whether the applicant had been mistreated, even in part because of his sexual orientation, as that did not form part of his mandate.

9Accordingly, I do not find that the ESA decision dealt with the allegation of mistreatment on the basis of sexual orientation.

10The respondents have not indicated an interest in pursuing mediation.

11The Registrar-Transition will contact the parties to schedule a date for a hearing.