McCall v. Toronto Beds & Bedrooms Inc., 2013 HRTO 1594

Human Rights Tribunal of Ontario

B E T W E E N:

Paul Kennedy McCall Applicant

-and-

Toronto Beds & Bedrooms Inc. o/a The Bedroom Shop Canada Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: September 23, 2013 Citation: 2013 HRTO 1594 Indexed As: McCall v. Toronto Beds & Bedrooms Inc.

WRITTEN SUBMISSIONS

Paul McCall, Applicant Thomas Peacock, Representative

Toronto Beds and Bedrooms Inc., Respondent Ronald Minken, Counsel

Introduction

1This Application arises from the applicant's employment with the respondent and the end of that employment which happened when the applicant resigned on March 6, 2012. The Application was filed on March 13, 2013.

2The applicant alleges that he was subject to discrimination on Code-protected grounds during his employment. He alleges that he was forced to resign his employment because of alleged discrimination or harassment. He alleges continuing harassment subsequent to his resignation, including a series of text messages, the last of which appears to have been sent on March 14, 2012.

3After the end of the employment relationship, the applicant claimed that the employer had not paid monies that were owed to him. He filed a complaint under the Employment Standards Act, 2000, S.O. 2000, c. 41 ("ESA"). An Employment Standards Officer investigated the complaint and determined that the employer had contravened the ESA. The employer was ordered to make payment to the applicant. The applicant alleges that the personal respondent stated that the payment would only be made if the applicant dropped the Application to this Tribunal. The applicant alleges that this was a reprisal, contrary to the Code.

4The respondent submits that the Application should be dismissed for several reasons. First the respondent submits that the substance of the Application has been appropriately dealt with by the proceeding under the ESA and that it should therefore be dismissed under section 45.1 of the Code, which provides:

45.1 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.

5The respondent further argues that the Application does not raise allegations that would constitute an infringement of the applicant's Code-protected rights and denies that the applicant could prove the unfair treatment that he alleges.

6In the alternative, the respondent submits that the Application should be dismissed because it was not filed in time. Section 34 of the Code provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7The respondent notes that the applicant's employment ended on March 6, 2012, and that the Application was not filed until March 13, 2013, which was more than one year later. The respondent submits that the alleged events after March 6, 2012, including the text messages that were sent to the applicant, did not involve any Code-related allegations.

8Finally, the respondent notes that the applicant listed record of offences as a ground of alleged discrimination. This ground relates only to certain circumstances where a person has a record of a criminal record. There is no suggestion that this applies to the applicant.

Conclusions

9Having considered the submissions of the parties, I conclude that the Application cannot be dismissed at this stage. It appears to me that the Tribunal will require evidence in order to determine whether the Application should be dismissed for any of the reasons set out by the respondent. Specifically, while it is clear that there is an overlap between the ESA claim and the Application, it is not clear that the Application could be dismissed in its entirety on the grounds that the ESA proceeding appropriately dealt with the substance of the Application.

10While the Application was filed more than one year after the termination of the applicant’s employment, it is not clear that there is no good faith explanation for the delay or that there was a series of events the last of which occurred within one year of the when the Application was filed.

11The issue of whether the applicant’s allegations involve the Code and whether he can prove the allegations is also a matter that would require evidence.

12For these reasons, the Tribunal will continue to process the Application. Both parties have agreed to mediation and so the next stage in processing will be to schedule a mediation session.