Reid v. Advantage Personnel Inc., 2012 HRTO 1096

Human Rights Tribunal of Ontario

Between:

Lloyd Reid, Applicant

-and-

Advantage Personnel Inc., Respondent

Interim Decision

Adjudicator: Mary Truemner Date: May 31, 2012 Citation: 2012 HRTO 1096 Indexed as: Reid v. Advantage Personnel Inc.

1This is an Application filed July 7, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination on the basis of age with respect to the termination of the applicant's employment. A hearing has been scheduled to commence June 22, 2012. This Interim Decision addresses concerns raised by the respondent in his correspondence dated April 9, 2012, including the respondent's request for an adjournment, and its earlier request found in its Response that the Application be dismissed.

REQUEST TO ADJOURN

2The Application was initially filed against Hudson's Bay Company, and the Tribunal subsequently granted the applicant's request to add Advantage Personnel Ltd. as a respondent. On December 12, 2011, the Tribunal sent a Notice of Confirmation of Hearing scheduled to commence June 22, 2012. Subsequently, Hudson's Bay Company settled with the applicant. Upon receiving a Form 25 confirming the settlement between the applicant and Hudson's Bay Company, the Tribunal mistakenly informed all the parties in a letter dated March 14, 2012 that it had finally disposed of the Application and closed the file.

3On April 4, 2012, the Tribunal sent another letter to the parties, noting that its previous letter was sent in error because the file is closed only with respect to Hudson's Bay Company, and that the Application will continue as against Advantage Personnel Ltd., the remaining respondent ("the respondent"). The parties should note that the Hudson's Bay Company is no longer a party in this Application and is no longer indicated on the style of cause. There is no need to copy it with respect to any documents exchanged or filed in the context of this Application.

4On April 9, 2012, the respondent's representative wrote to the Tribunal requesting an adjournment because of the availability of its representative, explaining that upon receipt of the Tribunal's letter dated March 14, 2012 which mistakenly closed the entire file, the respondent's representative released the June 22, 2012 hearing date and made a commitment elsewhere. In addition, his letter states, "Upon review of the availability of our availability [sic], and that of our witnesses during the summer period, we would request a postponement until after September 10, 2012."

5The applicant has not responded to the respondent's request to adjourn. In the circumstances, the respondent's request to adjourn is granted.

REQUEST TO DISMISS EARLY

6The Response indicates that the Application was appropriately dealt with in a proceeding under the Employment Standards Act, 2000, S.O. 2000, c.41, as amended, in which an Employment Standards Officer ("ESO") reviewed evidence provided by the applicant and by the respondent, and concluded that the termination of the applicant's employment was due to disobedience and wilful neglect of duty. The respondent therefore argues that the Application should be dismissed pursuant to s.45.1 of the Code. The applicant replied and argues that the issue of whether his age was a factor in the termination was never an issue before the ESO, and therefore the Application was not appropriately dealt with by the ESO.

7An oral hearing by way of conference call will be scheduled by the Tribunal to deal with the respondent's request to dismiss the Application under s.45.1 of the Code. In preparation, the parties are directed to relevant Tribunal decisions which may be found at www.canlii.org and, in particular, to Paterno v. Salvation Army, 2011 HRTO 2298, to Violo v. Maple Leaf Sports & Entertainment Ltd., 2012 HRTO 641 and to Rampersaud v. Primary Response Inc., 2011 HRTO 2172. In addition, the parties are directed to the Supreme Court of Canada's decision: British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52.

8The adjournment is granted and the hearing date of June 22, 2012 is cancelled. The Tribunal will schedule a half-day conference call for the hearing of the respondent's request to dismiss the Application pursuant to s.45.1 of the Code. Submissions only will be heard, and no witnesses will be required.