Dunphy v. Primary Response Inc., 2012 HRTO 1202

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerard Dunphy Applicant

-and-

Primary Response Inc. Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: June 18, 2012 Citation: 2012 HRTO 1202 Indexed as: Dunphy v. Primary Response Inc.

WRITTEN SUBMISSIONS

Gerard Dunphy, Applicant Self-represented

Primary Response Inc, Respondent Yvonne MacDonald, Representative

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age, disability, record of offences and reprisal. This Interim Decision deals with a Request for Order During Proceeding seeking the early dismissal of the Application on the basis that there are no facts pled that would support a claim that the Code has been violated. The respondent also states that the Application should be dismissed pursuant to section 45.1 of the Code because the subject matter of the Application has been appropriately dealt with in another proceeding.

2I am not satisfied that this Application can be dismissed on either basis. There are allegations made in the Application that, if proved, may establish a violation of the Code. I am also not satisfied that the Applicant can be dismissed pursuant to section 45.1. The “proceeding” relied on by the respondent in this case was a process initiated in relation to various health and safety concerns the applicant had and an allegation that he was subject to reprisal for raising a number of these concerns. This matter was pending before the Ontario Labour Relations Board (OLRB), but the applicant has withdrawn his appeal and accordingly the OLRB did not deal with the issues. It is also not clear how much overlap there was between the health and safety dispute and the allegations in this Application, although there appears to be some similarity between some of the issues.

3I agree with the applicant that there are issues raised in the Application that were not dealt with in the health and safety proceeding and could not have been addressed in that proceeding, in particular the central allegation of discrimination in employment on the basis of age.

4In his Application, the applicant has claimed reprisal. In the matter that might have gone to the OLRB, the applicant apparently alleged a reprisal under s. 50 of the Occupational Health and Safety Act, RSO 1990, c O.1 It is not clear whether the applicant is relying on the same facts to support his claim of reprisal in this Application. The parties are reminded that in order to establish a reprisal under the Code, an applicant must prove that the respondent intended some negative consequence for an applicant because s/he sought to enforce rights protected by the Code.

5The parties have not agreed to mediation. The Tribunal will schedule a one day hearing.