Crompton v. Fairlane Performance Management, 2010 HRTO 2391

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Crompton

Applicant

-and-

Fairlane Performance Management Inc.

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: December 1, 2010

Citation: 2010 HRTO 2391

Indexed as: Crompton v. Fairlane Performance Management

1This is an Application filed on September 18, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Mediation of the Application did not result in a settlement. In its Response, the respondent has requested that the Application be dismissed under section 45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with through a decision of the Board of Referees on the applicant’s claim for Employment Insurance (“EI”) benefits.

3The applicant alleges discrimination in employment on the ground of disability, as well as reprisal. She alleges, among other things, that her employment was terminated in September 2008 at least in part because of a disability. The respondent states that the termination of her employment was based on the applicant’s misconduct in the workplace.

4In its decision, the Board of Referees found the allegations of misconduct substantiated and allowed the appeal from the initial decision to grant the applicant EI benefits. The applicant has appealed the Board of Referees decision to the Umpire. In the circumstances, the Tribunal finds that the “proceeding” for the purpose of section 45.1 has not reached its conclusion and it is premature to assess whether section 45.1 should result in a dismissal of all or part of the Application. See Cui v. MSM, 2008 HRTO 219.

5The request to dismiss is therefore denied, without prejudice to the respondent’s right to make a further request following the completion of the EI appeals process.

6In these circumstances, it may be appropriate for the Tribunal to defer the Application pending the completion of the appeal to the Umpire. The parties are therefore directed to provide written submissions on whether the Tribunal should defer the Application pending the conclusion of that process. Their written submissions must be delivered to each other and filed with the Tribunal within two weeks of this Interim Decision, and should provide information about the status of the appeal.

7I am not seized of this matter.