Coombs v. Amlee Foods Ltd., 2014 HRTO 1629

Human Rights Tribunal of Ontario

Between: Robert Coombs (Applicant) -and- Amlee Foods Ltd. (Respondent)

And Between: Richard Coombs (Applicant) -and- Amlee Foods Ltd. (Respondent)

Interim Decision

Adjudicator: Geneviève Debané Date: November 5, 2014 Citation: 2014 HRTO 1629 Indexed as: Coombs v. Amlee Foods Ltd.

Written Submissions

Richard Coombs, Applicant: Self-represented Robert Coombs, Applicant: Self-represented Amlee Foods Ltd., Respondent: Puja Gupta CFO, Representative

1Robert Coombs and Richard Coombs are two brothers who were employed by the respondent. Each of them has filed an Application alleging discrimination with respect to employment on the basis of sex, sexual harassment, reprisal and being in association with a person identified by one of these grounds (presumably each other). They both assert that they were subjected to harassment contrary to the Human Rights Code, R.S.O. 1990. c. H.19 as amended (the "Code") and that when they complained their employment was terminated as a reprisal.

2The respondent has filed a Response denying a breach of the Code and seeking the dismissal of the Application pursuant to section 45.1 of the Code because it asserts that another proceeding has addressed the substance of the Applications. Both applicants' oppose the dismissal of the Application.

3Each applicant filed a complaint with the Ministry of Labour (the "MOL") alleging breaches of the Employment Standards Act, 2000 (the "ESA") seeking the payment of outstanding wages, termination pay and severance pay. They also alleged that the respondent had reprised against them when it decided to terminate their employment.

4The MOL appointed an Employment Standards Officer (the "ESO") to investigate the complaints. On April 7, 2014, the ESO issued two Decisions with respect to the complaints. These Decisions appear to be almost identical.

5The ESO found that the applicants were not entitled to any unpaid wages and that the respondent had paid the applicants their statutory termination pay. Further, the applicants were found not to be entitled to severance pay because they had not completed five years' service with the respondent. With respect to the issue of reprisal, the ESO found that the applicants had not sought to engage in any protected activity under the ESA since their complaints were unrelated to the ESA. The ESO therefore found that the respondent did not reprise against the respondent when it decided to terminate the applicant's employment.

Section 45.1

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".

8I have considered the submissions of the respondent in support of its request to dismiss the Application. However, the Tribunal's discretion to apply s. 45.1 of the Code should be based on the facts that are before it.

9Having reviewed the matter, I find that the issues raised in the Applications, includes whether the applicants were subjected to sexual harassment in the workplace and whether their employment was terminated as a reprisal for seeking the enforcement of their rights under the Code. Most employment-related legislation includes reprisal protection in order to protect individuals in the enforcement of their rights under that particular legislation. In this case, the ESO did not allow the applicants' claims of reprisal because she found that they had not engaged in any protected as defined by the ESA. As such, none of the ESO's findings are determinative of the Code-related allegations in the Application.

10In these circumstances the respondents' Requests to dismiss are denied because another proceeding has not appropriately dealt with the substance of the Application. Given this determination I need not address the issue of whether there was in fact a "proceeding".

Next Step

11In light of the commonality of these two Applications, I have exercised my discretion to issue one Interim Decision in this matter however this is not determinative of the issue of consolidation. The parties will be given the opportunity to make written submissions on this issue.

Order

12The Tribunal orders:

a. The respondent's Requests to dismiss pursuant to section 45.1 of the Code are denied;

b. Within 7 days of the date of this Interim Decision, the applicants must deliver to each other and the respondent and file with the Tribunal written submissions on the issue of whether or not the hearing of these two Applications should be consolidated; and

c. Within 7 days of the receipt of the applicants' submissions, or in the event that none are filed, on the expiry of the deadline, the respondent must deliver to the applicants and file with the Tribunal its written submissions on the issue of consolidation.

13I am not seized.

Dated at Toronto, this 5th day of November, 2014.

"signed by"

Geneviève Debané Vice-chair