Saroyan v. Deco Automotive, 2010 HRTO 1739

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Saroyan Applicant

-and-

Deco Automotive, a Division of Cosma International inc. Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: August 24, 2010 Citation: 2010 HRTO 1739 Indexed as: Saroyan v. Deco Automotive

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), alleging discrimination in employment on the basis of family status.

2The applicant alleges that respondent employer insisted that the applicant work the afternoon shift despite being advised by the applicant and his counsel that the afternoon shift conflicted with the applicant's child access arrangements. The applicant alleges that another employee received preferential treatment. The applicant further alleges that he became the subject of harassment because his supervisor informed other workers of his personal circumstances and his request for accommodation. The applicant alleges that he was compelled to terminate his employment because of the respondent's refusal to accommodate his child care needs and due to the hostile work environment.

3The respondent filed a Response denying that it discriminated against the applicant. On July 7, 2010, the respondent filed a Request for an Order During Proceedings seeking dismissal of the Application on the basis that other proceeding through the Ministry of Labour (Employment Standards) has appropriately dealt with the substance of the Application. The respondent submits that a decision has been issued by an Employment Standards Officer dismissing the applicant's Employment Standards claim for termination and severance pay. The respondent asserts that Employment Standards Officer's Reasons for Decision ("ESA Decision") found that the applicant freely resigned his employment and that the employer's ability to alter shift assignment was a fundamental term of the employment contract.

4The applicant did not file a Response to the Request for an Order and the time for doing so has elapsed.

SECTION 45.1 REQUEST TO DISMISS

5Section 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.

6The Tribunal's jurisprudence has suggested that s. 45.1 should be considered in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the application. The purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.

7The Application appears to have the following three elements:

a. allegations of differential treatment and failure to accommodate; b. allegations of poisoned work environment; and c. allegations of forced employment termination.

8I am not satisfied that the human rights substance of the Application was "appropriately" dealt with by the ESA Decision. The ESA Decision deals with the applicant's claim for termination and severance pay due to constructive dismissal. The ESA Decision found the employer was entitled to alter the applicant's shift assignment pursuant to the employment contract and that the applicant voluntarily resigned his employment.

9In 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 sought 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.

10Based on a review of the ESA Decision, it appears that the Employment Standards Officer did not consider the human rights issues of discrimination, harassment and accommodation as contemplated by the Code. The ESA Decision simply found that the applicant failed to satisfy the elements of constructive dismissal. While a finding with respect to constructive dismissal may be requisite issue under Employment Standards legislation, this issue does not address or answer the parties' respective Code rights and responsibilities. For example, there is no indication that the ESA Decision carried out an assessment of the procedural and substantive components of the duty to accommodate or considered the defence of undue hardship. Further while it appears the Employment Standards Officer was alert to the applicant's allegations of poisoned work environment, the ESA Decision makes no specific findings in this regard.

11Similarly, the fact that the ESA Decision dealt with the applicant's claim for pay in lieu of notice of termination does not address the question of whether the human rights substance of the Application has been appropriately dealt with or that Code remedies have been considered.

12In the circumstances, I am not satisfied that the applicant's allegations of family status discrimination have been dealt with appropriately in the other proceeding. The respondent's request for early dismissal of the Application is dismissed.

13The respondent also asserts that, in the alternative, the Tribunal should dismiss the parts of the Application which relate to the applicant's resignation and pay in lieu of notice in light of findings made regarding those matters in the ESA Decision. The respondent may raise this issue at the hearing of the Application, which is currently scheduled to commence on October 13, 2010.

14I am not seized.