HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stephen Kelly
Applicant
-and-
Zone 5 Landscaping & Property Maintenance Inc.
Respondent
interiM DECISION
Adjudicator: Alison Renton
Indexed as: Kelly v. Zone 5 Landscaping & Property Maintenance
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), on March 23, 2009, alleging discrimination in employment on the basis of disability.
2The respondent filed a Response on December 10, 2009, denying the allegation of discrimination and requesting 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.
3By letter from the Registrar of the Tribunal dated December 14, 2009, the applicant was invited to make submissions in his Reply with respect to the respondent’s request. The applicant has not filed a Reply or otherwise responded to the Tribunal’s December 14, 2009 correspondence and the time for doing so has now passed.
4This Interim Decision addresses the respondent’s Request.
5The respondent submits that in December 2008 the applicant issued a Statement of Claim at the Ottawa Small Claims Court (“the claim”) regarding the same factual circumstances as alleged in the current Application. The respondent filed a Statement of Defence and a settlement conference was held on March 26, 2009, with the parties. As the matter was not set down for trial, the claim was dismissed by the Court as abandoned on September 22, 2009. The respondent enclosed copies of the Statement of Claim, Statement of Defence, the Court’s Notice of Settlement Conference and Order Dismissing Claim as Abandoned (Defended).
6Section 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.
7There 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.
8I do not need to decide whether the court process was a “proceeding” within the meaning of section 45.1 because I find that the court process did not deal with the substance of the Application. Because the claim was dismissed as abandoned, the Court did not make any decisions concerning the Code-related allegations in the Application.
9The Request for dismissal under section 45.1 is denied.
10As the respondent has indicated that it is not prepared to participate in mediation, the Tribunal will schedule the Application for hearing.
11I am not seized of this matter.
Dated at Toronto, this 19th day of February, 2010.
“Signed by”
Alison Renton
Vice-chair