Felix v. Metafore Technologies Inc., 2014 HRTO 1058

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Felix

Applicant

-and-

Metafore Technologies Inc., Jennifer Perez and Roberta Renna

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: July 18, 2014 Citation: 2014 HRTO 1058 Indexed as: Felix v. Metafore Technologies Inc.

WRITTEN SUBMISSIONS

Hans Felix, Applicant

Self-represented

Introduction

1This Application alleges reprisal and discrimination with respect to employment because of colour, place of origin, ethnic origin, disability, age and record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On March 26, 2014 the Tribunal delivered the Response and Notice of Request to Dismiss the Application (“the Notice”) to the applicant and directed him to file a Reply including a response to the dismissal issue by no later than April 9, 2014.

3The Notice states that the respondents request the Tribunal to dismiss the Application on the basis that another proceeding has appropriately dealt with the substance of this Application pursuant to s.45.1 of the Code.

4Attached to the Notice was the Employment Standards Act decision (“ESA decision”) deciding the applicant’s claims against the respondent employer for vacation pay, public holiday pay, termination pay, and reprisal. The Employment Standards Officer (“ESO”) dismissed the claims finding the applicant had received vacation pay, was not entitled to public holiday pay and that his termination was not a reprisal under s. 74(1) of the ESA.

5In response, the applicant forwarded an e-mail to the Minister of Labour about an upcoming Ontario Labour Relations Board (“OLRB”) hearing, and also attached a Notice of Hearing from the OLRB advising the same parties as in this Application of a hearing on August 14, 2014. It is not clear if the OLRB hearing is an appeal of the ESA decision.

analysis and decision

Request to Dismiss

6Section 45.1 of the Code reads as follows:

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.

7The Tribunal has held that in determining whether an Application ought to be dismissed pursuant to s. 45.1 of the Code, it ought to consider: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with the substance of the Application”.

8With respect to the first issue, the Tribunal has held on a number of occasions that an ESA complaint process meets the requirements of a “proceeding” for the purposes of section 45.1 of the Code. See for example, Henderson v. Nutech Fire Protection, 2010 HRTO 2153.

9I am satisfied that the complaint process under the ESA is a proceeding within the meaning of section 45.1 of the Code.

10I also am satisfied that the substance of the Application was “appropriately dealt with” in that proceeding.

11One of the issues before the ESO was whether the applicant’s termination was a reprisal. The ESO determined that the employer terminated the applicant based on performance and not as a reprisal for asserting his rights under s. 74(1)(a) of the ESA.

12The ESO also found as a fact that there was no evidence that the employer asked the applicant to work on a Sabbath Day. While the applicant’s Code-related claims were not addressed or decided directly by the ESO, this finding of fact is inconsistent with the applicant’s allegation in the Application that his termination was a reprisal for having asserted his right not to work on a Sabbath Day.

13In this case this Application could well lead to a result that is inconsistent with the ESA finding. As noted by the Supreme Court of Canada in British Columbia Worker’s Compensation Board v. Figliola, 2011 SCC 52 at para. 34, one of the purposes underlying a provision similar to s.45.1 is to prevent inconsistent results that would undermine the administration of justice.

14As such, in these circumstances the respondents’ request to dismiss is granted because another proceeding has appropriately dealt with the substance of the Application.

15Although the applicant asserted in addition to reprisal that the respondents discriminated against him on the basis of colour, place of origin, ethnic origin, disability, age and record of offences, he did not provide any facts or evidence to establish any link to the Code.

order and direction

16The reprisal claim is dismissed.

17By no later than July 31, 2014 the applicant is directed to provide submissions why his claims based on colour, place of origin, ethnic origin, disability, age and record of offences should not be dismissed for failing to identify any specific acts of discrimination allegedly committed by the respondents connected with these grounds.