Brady Poirier v. MacLean Engineering & Marketing Co. Limited, 2010 HRTO 1442

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brady Poirier

Applicant

-and-

MacLean Engineering & Marketing Co. Limited

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: June 30, 2010

Citation: 2010 HRTO 1442

Indexed as: Poirier v. MacLean Engineering & Marketing

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleges reprisal or threat of reprisal in the context of employment.

2In essence, the applicant alleges that his request for a medical leave was a factor in the termination of his employment.

3The respondent filed a Response denying the allegations of discrimination. The respondent alleges that it had just cause to dismiss the applicant because he had misrepresented his health and need for a medical leave of absence.

4The respondent is seeking an early dismissal of the Application because another proceeding under the Employment Standards Act, 2000, S.O. 2000 c. 41, as amended (“ESA”), has in whole or in part appropriately dealt with the substance of the Application.

5The applicant filed a claim under the ESA alleging that his employment was terminated without just cause. The ESA officer dismissed the applicant’s claim and held that the applicant's employment was terminated for cause. The ESA officer specifically found that the respondent’s request for further medical documentation from the applicant was reasonable and that the applicant was uncooperative.

6There appears to be an overlap in the subject matter of the Application and the ESA proceedings in regards to the termination of the applicant’s employment and his allegations that his disability was a factor in his dismissal.

7The respondent raises a serious issue as to whether the Application should be dismissed pursuant to section 45.1 of the Code, which states:

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.

9Section 43(2)1 of the Code provides that, where an application is within the Tribunal’s jurisdiction, the Tribunal must provide the parties with an opportunity to make oral submissions before making a final determination of the Application.

10In the circumstances, it is appropriate to give the applicant an opportunity to make oral submissions regarding the respondent’s request for dismissal. If the applicant wishes to make oral submissions on the dismissal issue, he must either:

a. within ten days of the date of this Interim Decision, advise the Tribunal and the respondent in writing of his desire to make oral submissions. If the applicant selects this option, the Registrar will schedule a hearing by way of a telephone conference call; or

b. within ten days of this Interim Decision, provide the respondent and file with the Tribunal written submissions regarding the dismissal issue.

11If the applicant does not advise the Tribunal and the respondent of his desire to make further submissions according to paragraph 6, the Tribunal may determine the dismissal issue based on the materials already filed.

12If the applicant chooses to make oral submissions, the following directions shall apply to the hearing:

a. the applicant should be prepared to proceed first at the hearing, by responding to the written arguments of the respondent and the following questions:

i. Is the ESA matter a proceeding for the purposes of the Code?

ii. If so, did the ESA matter deal with the substance of the Application?

iii. If so, did the ESA matter appropriately with the substance of the Application?

b. any party wishing to rely on written materials not already filed with the Tribunal or any facts not contained in the Application or Response must deliver such documents or information to the other party and file them with the Registrar within 21 days of the date of this Interim Decision.

13I am not seized of this matter.