Simon v. Independent Energy Services Co. Ltd, 2012 HRTO 1018

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Meghan Simon

Applicant

-and-

Independent Energy Services Co. Ltd., Service Partner Plus and Jody Villeneuve

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Decision Date: May 18, 2012 Citation: 2012 HRTO 1018 Indexed as: Simon v. Independent Energy Services Co. Ltd

WRITTEN SUBMISSIONS

Meghan Simon, Applicant Self-represented

Independent Energy Services, Service Partner Plus and Jody Villeneuve, Respondents Self-represented

Introduction

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 the applicant’s request to add an organizational respondent.

decision and analysis

Section 45.1

2The applicant filed her Application on May 25, 2011, alleging discrimination in employment on the basis of disability and family status contrary to the Code. Prior to filing her Application , the applicant filed a claim to the Ministry of Labour for termination, and vacation pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). A decision was rendered on her ESA claim, in which the Employment Standards Officer found that the applicant (claimant in that process) “was not properly terminated for cause and is therefore entitled to pay in lieu of notice.”

3In reaching that conclusion, the Employment Standards Officer made factual findings that (1) the employer had “ongoing concerns with the claimant’s performance; (2) these concerns were discussed with the claimant; and (3) the claimant, however, was not put on “notice that her continued employment was in jeopardy.”

4Section 45.1 of the Code states:

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 complaint.

5The applicant alleges in her Application that she was treated more poorly by the respondents after she disclosed a medical condition, harassed when she sought time off for medical appointments and ultimately, fired from her job. It is difficult to see from the reasons of the Employment Standards Officer how this decision dealt with the “substance” of the Application. The fact that the respondents had concerns about her job performance, which they discussed with the applicant, is not dispositive of the allegations of discrimination.

6The factual findings of the Employment Standards Officers might ultimately be relevant to the adjudicator hearing this Application. Likewise, the fact that the applicant received a sum of money by way of termination pay may be relevant to the issue of damages in the event that a finding of discrimination is made.

7The respondents request to dismiss on the basis of s. 45.1 is denied.

Adding a respondent

8The applicant brought a Request for an Order During Proceedings asking to add Service Partner Plus, a company that she states the personal respondent owned, on the basis that she worked for both companies. The respondents oppose the Request to add on the basis that, while the applicant did do some work for the proposed respondent, the applicant was not employed by it. They say that the proposed respondent is a client of the current organizational respondent.

9Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. There is a factual dispute about whether the applicant “did work for” or was “employed by” the proposed respondent. The Tribunal has too little information before it on which to make a factual determination on this issue and this will have to be left to the adjudicator assigned to hear this matter.

10Accordingly, the applicant’s request to add the respondent is granted.

Order

11In summary, the Tribunal makes the following orders:

1. The respondents’ request to dismiss on the basis of s. 45.1 is dismissed;

2. The applicant’s request to add Service Partner Plus as a respondent is granted and the style of cause is amended accordingly.

12I am not seized of this matter.