HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carlo LoPapa
Applicant
-and-
Loblaw Companies Ltd.
Respondent
DECISION
Adjudicator: Michelle Flaherty
Indexed as: LoPapa v. Loblaw
1The applicant filed an Application on May 12, 2009 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination on the basis of disability in the context of employment.
2In essence, the applicant states that he was in receipt of short term disability benefits from the respondent when he was involved in a car accident. He states that he was denied long-term disability benefits and that the respondent subsequently required him to return to modified work duties. The applicant states that he refused to return to work “because of his injuries” and that the respondent terminated his employment as a result.
3The respondent filed a Response in which it denies the allegations of discrimination and states that the applicant’s employment was terminated for just cause. In addition, the respondent has requested the early dismissal of the Application because:
a. a claim based on the same facts has been filed in civil court, requesting a remedy based on the alleged human rights violation. This claim was subsequently discontinued by the applicant;
b. another proceeding (a grievance) has appropriately dealt with the substance of the Application; and
c. the Application was filed outside the one year limitation period provided in the Code and the delay was not in good faith.
4The respondent has also filed a Request for an Order During Proceedings (“Request”) seeking the dismissal of the Application on the basis set out in paragraph 3, above.
5The applicant’s Union, the United Food and Commercial Workers Canada, Local 1000A (“Union”) has filed a Request to Intervene.
6On April 13, 2010, the Tribunal provided the applicant with a copy of the Response and invited submissions from him on the respondent’s request to dismiss because of the civil action and the grievance proceeding. The Tribunal did not specifically request submissions regarding the timeliness issue.
7The applicant has not filed a Reply, nor has he responded to the respondent’s Request or the Union’s Request to Intervene. The time for doing so has now elapsed.
8In my view, the respondent has raised a serious issue regarding the timeliness of the Application. In the circumstances, it is appropriate to give the applicant an opportunity to provide written submissions regarding whether the Application should be dismissed pursuant to section 34 of the Code because it was filed more than one year after the last alleged incident of discrimination.
9Within ten days of the date of this Interim Decision, the applicant may serve the respondent and the Union and file with the Tribunal written submissions regarding the timeliness issue. If the applicant does not file submissions, the Tribunal may determine the issue on the basis of the material already filed.
10The Tribunal will address the other preliminary issues raised by the respondent and the Union once the applicant has had the opportunity to provide submissions on timeliness.
11I am not seized with this matter.
Dated at Toronto, this 19th day of May, 2010.
”signed by”______________
Michelle Flaherty
Vice-chair