Poirier v. MacLean Engineering & Marketing Co. Limited, 2010 HRTO 1672

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brady Poirier

Applicant

-and-

MacLean Engineering & Marketing Co. Limited

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: August 12, 2010

Citation: 2010 HRTO 1672

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 his 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.

5In an earlier Interim Decision, 2010 HRTO 1442, the applicant was given an opportunity to make oral submissions on the issue of dismissal. The applicant was directed to advise the Tribunal and the respondent of his desire to make oral submissions or, in the alternative, he was offered an opportunity to provide written submissions.

6The applicant communicated with the Tribunal and the respondent by email on July 2, 2010. He wrote:

Unless the HRTO is willing and able to make a final decision based on all of the information previously presented, I do not object to granting them “the respondent” their request in having the case dropped.

7Accordingly, the Tribunal will determine the respondent’s request for dismissal on the basis of the written materials filed by the parties.

ANALYSIS

8Section 45.1 of the Code provides:

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.

9The ESA matter is a proceeding for the purposes of the Code.

10In order to determine whether another proceeding has appropriately dealt with the substance, in whole or in part, of the Application, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding and whether the substance of the issues raised in each forum was substantially the same. See Rotondo v. Village Millcraft Apartments, 2009 HRTO 313.

11In Noble v. York University, 2009 HRTO 1201, the Tribunal held that in determining whether to exercise discretion under section 45.1, the question is not whether an applicant received the result and remedy he was seeking in the other proceeding, but whether there was a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code.

12Human rights issues, such as those raised in the Application, can be addressed in the ESA process. See Calabria v. DTZ Barnicke, 2008 HRTO 411.

13In the circumstances of this case, there is a clear overlap in the subject matter of the Application and that of the ESA proceedings. Both relate to the termination of the applicant’s employment and his allegations that his disability was a factor in the respondent’s decision to dismiss him.

14In this case, 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. The officer rejected the applicant’s argument that his request for medical leave was an improper factor in the termination of his employment.

15I am satisfied that the ESA proceeding in this case dealt with the substance of the Application, namely the termination of the applicant’s employment. I also find that, in regards to the termination, the ESA claim raised substantially the same human rights issues as the Application. In my view, the applicant has had a full and fair opportunity to have the human rights aspects of the termination of his employment considered by an adjudicator who had the jurisdiction to interpret and apply the Code.

16Accordingly, the request for dismissal under s. 45.1 is granted. The Application is dismissed.