Cartledge v. SKL4EVR Ltd., 2010 HRTO 1891

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Cartledge

Applicant

• and-

SKL4EVR Ltd., Joyce Nevins and Len Laundry

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: September 16, 2010

Citation: 2010 HRTO 1891

Indexed as: Carteledge v. SKL4EVR

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 13, 2009 alleging discrimination and harassment in employment on the basis of disability. The applicant alleges that she was subjected to offensive comments with respect to her mental health, falsely accused of drinking alcohol while on the job and perceived to have a drinking problem because of her disability-related symptoms. The applicant further alleges that the respondents failed to accommodate disability-related work performance concerns.

2The respondents filed a Response on January 11, 2010 denying the allegations of discrimination. The respondents submit that the applicant was dismissed as a result of serious performance concerns, including inability to perform tasks due to impairment. On August 23, 2010, the respondents filed a Request for an Order During Proceedings asking that the Application be dismissed pursuant to section 45.1 of the Code on the basis that another proceeding has appropriately dealt with the subject-matter of the Application.

BACKGROUND

3The respondents submit that the applicant made a claim with the Ministry of Labour alleging a contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) regarding the termination of her employment which is also the subject of the current Application. The respondents enclosed a copy of the ESA Reasons for Decision, dated August 13, 2010. The respondents argue that this Application should be dismissed because the ESA officer found that the applicant was properly terminated for cause due to willful misconduct and neglect of duty. The respondents argue the substance of this Application has been appropriately dealt with by the ESA Decision.

DECISION

4Section 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.

5There are two parts to the inquiry under section 45.1: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application.

6I have carefully reviewed the ESA Decision and I do not find the conclusions reached in that Decision to have addressed the human rights substance of this Application. The key issue considered by the ESA Decision was whether or not the applicant was owed any termination or severance pay pursuant to employment standards legislation The ESA Decision held the applicant was not owed such monies because she was subjected to progressive discipline. Although the ESA Decision notes that the applicant denies violating the employer’s policy regarding alcohol, there is no consideration of the applicant’s allegations of discrimination and harassment during the course of employment because of the issue of perceived disability and the duty to accommodate. As such, it cannot be concluded that the ESA Decision determined the Code-related allegations in the Application.

7In Noble v. York University, 2009 HRTO 1201, the Tribunal held that in determining whether to exercise discretion under section45.1, 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. Based on a review of the ESA Decision, it appears that the officer did not consider the human rights issues of discrimination, harassment and accommodation as contemplated by the Code. Further while it appears the officer was alert to the applicant’s allegations of perceived disability and poisoned work environment, the ESA Decision makes no specific findings in this regard. The ESA Decision simply found that the applicant was not entitled to termination and severance pay.

8The request for dismissal under section 45.1 is denied. The mediation set for September 30, 2010 will proceed as scheduled.

9I am not seized of this matter.