Human Rights Tribunal of Ontario
B E T W E E N:
Anthony Gretzky Applicant
-and-
Centre Auto Collision Limited, Howie Schmieizer, Dave Mehta and Paul Schmieizer Respondents
INTERIM DECISION
Adjudicator: Naomi Overend Date: July 11, 2011 Citation: 2011 HRTO 1314 Indexed as: Gretzky v. Centre Auto Collision Limited
Reasons for Decision
1This Interim Decision deals with the respondents’ request to dismiss this Application under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), as well as their request to dismiss on the basis of delay.
2The applicant filed his Application on March 10, 2011, alleging discrimination in employment on the basis of disability, sexual orientation, marital status and creed contrary to the Code. Prior to filing his Application, the applicant filed a claim to the Ministry of Labour for termination, severance and vacation pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). A decision was rendered on his ESA claim, denying his entitled to severance on the basis that there was no evidence that the applicant’s employment had been terminated.
3The parties advise that the applicant has decided to appeal this determination to the Ontario Labour Relations Board. Given that the process for severance pay is ongoing, it would not be appropriate to dismiss this Application under s. 45.1, which requires the other proceeding to have “dealt with” the substance of the Application.
4In any event, it would appear from the reasons of the Employment Standards Officer that the issue in the ESA claim is a narrow one, which does not deal with the “substance” of the Application. As pointed out by the applicant in his Reply, if he receives termination and severance pay, this amount can be offset from any amount ordered by this Tribunal for wage loss in the event the applicant is successful in establishing discrimination.
5With respect to the issue of delay, the Code requires an application to be filed within one year of the incident (or last in a series of incidents) giving rise to the application (unless an applicant can establish the delay was incurred in good faith and no substantial prejudice will result from the delay). In this case, I concur with the submissions made by the Reply that the applicant’s attempts to return to work on March 24, 25 and April 14, 2011 appear to be part of a series of incidents alleged in his Application. Accordingly, it would appear that the Application was filed within the one year time limit.
6In summary, the respondents’ request to dismiss on the basis of s. 45.1 and on the basis of delay is dismissed.
7I am not seized of this matter.
Dated at Toronto, this11th day of July, 2011
“Signed by”
__________________________________ Naomi Overend Vice-chair