Giuseppe Partipilo v. David Pomer, 2009 HRTO 706

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Giuseppe Partipilo

Applicant

-and-

David Pomer

Respondent

INTERIM decision

Adjudicator: Brian Cook

Date: May 28, 2009

Citation: 2009 HRTO 706

Indexed as: Partipilo v. Pomer

1This Interim Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2In the Response, the respondent seeks early dismissal of the Application on the basis of section 34(11) of the Code:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

3Section 46.1 confers on a court the power to make remedial orders where the court finds a Code-protected right has been infringed.

4The respondent has provided a number of documents, including a Notice of Motion and Notice of Cross-Motion concerning various litigants, but not including the applicant. The documents also include Orders of Justice Wilton-Seigel and Justice Lederman. Neither style of cause identifies the applicant as a party to either action. However, Justice Lederman’s Order dated March 26, 2006 refers to the applicant as follows:

Joe Partipillo (“Partipillo”) will have his position at DRS reinstated and Pomer agrees that DRS may reimburse Dhaliwal in the sum of $3,018.00 for salary which Dhaliwal paid Partipillo from his resources. Partipillo will continue to assume responsibility for the obtaining and maintenance of licenses and bonding thoughout Canada and shall report to Pomer regarding same. The reinstatement of Partipillo is contingent on Partipillo proving written assurance to Pomer in a form satisfactory, that Partipillo will agree to resign his employment, if asked by Pomer to do so, should Pomer in future assume full control of DRS.

5It also appears the applicant has provided affidavits in regard to at least one of the actions.

6However, there is nothing on which I can conclude the applicant has commenced a civil action or is seeking an order under section 46.1 of the Code. I am satisfied that section 34(11) does not bar the Application to the Tribunal.

7The Application alleges various employment-related problems and that the respondent reprised against him in respect to the operation of various contracts and employment-related issues.

8The Code provides protection from reprisal in the specific circumstances identified in section 8:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9The Code thus prohibits reprisal for claiming or enforcing rights under the Code. It does not prohibit reprisals for matters unrelated to the Code.

10The allegations of reprisal in the Application do not appear to be linked to an attempt to claim or enforce Code-based rights. In the circumstances it does not appear the Tribunal has the jurisdiction to deal with the Application.

11Within two weeks of the date of this Interim Decision, the applicant may file submissions with the Tribunal, copied to the respondent, as to whether the Tribunal has the jurisdiction to deal with the Application. The respondent may file submissions in response within one week of receipt of any submissions from the applicant.

If no submissions are filed by the applicant, the Application may be dismissed.