HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Barry Carrigan
Applicant
-and-
2037939 Ontario Limited o/a The Keystorm Pub
Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Carrigan v. 2037939 Ontario Inc.
APPEARANCES
Barry Carrigan, Applicant
Self-represented
2037939 Ontario Limited, o/a The Keystorm Pub, Respondent
Jennifer O’Reilly, Counsel
Introduction
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 and disability. The applicant also alleges that he experienced reprisal.
2A Case Assessment Direction (“CAD”), dated August 14, 2012, was issued setting this matter down for a preliminary hearing on the issue of whether some or all of the Application ought to be dismissed, pursuant to s. 45.1 of the Code, on the basis that the substance of the matters before the Tribunal had been appropriately dealt with in another proceeding or on the basis of issue estoppel or abuse of process.
3For the reasons that follow, a portion of this Application is dismissed. The balance of the Application will continue to be heard.
DECISION
4The applicant is a former employee of the respondent employer. He alleges that following a period of illness and hospitalization, he was made to take a medical leave of absence without pay and subsequently terminated for reasons contrary to the Code.
5The respondent filed a Response in which they deny any discriminatory conduct, allege that the applicant was offered a paid medical leave, which he refused, and subsequently terminated for cause. In its Response, the respondent indicated that a hearing had taken place before the Ontario Labour Relations Board on the issue of the termination.
6As a result of the information contained in the Response, a preliminary hearing was scheduled during which the Tribunal heard from the parties as to whether the proceeding before the Ontario Labour Relations Board had appropriately dealt with some or all of the substance of the matters before the Tribunal or whether the doctrines of abuse of process or issue estoppel apply in the circumstances of this Application.
7Although reference was made in the Response and in subsequent correspondence to a decision of the Ontario Labour Relations Board (“OLRB”), in advance of the hearing, counsel for the respondent provided the Tribunal with a copy of a decision of an Employment Standards Officer (the “ESO”), dated April 5, 2012.
8During the course of the preliminary hearing, counsel clarified that there had, in fact, been no hearing before the OLRB. The decision referred to in the preceding materials was that of the ESO, following an investigation conducted by her, dated April 5, 2012, and made under the Employment Standards Act, 2000 S.O. 2000