HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Krishana Chowdhry
Applicant
-and-
Eastern Independent Telecommunications Ltd.
and Rogers Communications Partnership
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Chowdhry v. Eastern Independent Telecommunications Ltd.
WRITTEN SUBMISSIONS
Krishana Chowdhry, Applicant
Self-represented
Eastern Independent Telecommunications Ltd., Respondent
Jason White, Representative
Rogers Communications Partnership, Respondent
Israel Balter, Counsel
1This is an Application filed under s. 34 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.
2The respondent Rogers Communications Partnership (“Rogers”) has not filed a Response but instead filed on January 21, 2014, a Request for an Order during Proceeding seeking the dismissal of the Application on the basis that it is a federal undertaking.
3The applicant’s employer Eastern Independent Telecommunications Ltd. (“Eastern”) has filed a Response in which it seeks the dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application.
Rogers’ Request
4In its Request to dismiss Rogers takes the position that it is a federal undertaking and that the Tribunal does not have jurisdiction to continue the Application as against it.
5Neither the applicant nor Eastern has filed any submissions with respect to this Request to dismiss.
6The Tribunal has determined in a number of decisions that Rogers is a federal undertaking. See for example: Syed v. Rogers Communications, 2012 HRTO 247 and Dougan v. Rogers Communications, 2009 HRTO 1169. In these circumstances, and in the absence of any submissions to the contrary from the other parties, I find that Rogers is a federal undertaking and that the Tribunal does not have jurisdiction over the subject-matter of the allegations against it. Therefore, the Application as against Rogers is dismissed.
Eastern’s Request to dismiss
7In its Response Eastern does not dispute that it is provincially regulated. In fact, the applicant filed a complaint with the Ministry of Labour of Ontario alleging that Eastern failed to comply with the Employment Standards Act, 2000 (the “ESA”) when it did not pay him termination pay. An Employment Standards Officer (the “ESO”) investigated the matter and issued a Decision on November 8, 2013 allowing the complaint and ordering Eastern to pay him termination pay. Eastern has made a Request to dismiss the Application on the basis that the proceeding before the ESO has appropriately dealt with the substance of the Application.
8Section 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.
9The 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”.
10Assuming without finding that the applicant’s claim for termination pay that was determined by the ESO was a “proceeding” within the meaning of s.45.1 of the Code, I am not satisfied that the substance of the Application was “appropriately dealt with” in that proceeding.
11The sole issue before the ESO was whether the applicant received his entitlement to termination pay pursuant to the ESA. In making this determination the ESO reviewed when the applicant’s period of temporary lay-off became permanent and whether he received wages during the appropriate notice period. The ESO determined that the applicant was owed termination pay pursuant to the ESA. The applicant’s Code-related claims were never addressed by the ESO nor were they an issue in that proceeding. As such, Eastern’s Request to dismiss is 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”.
The Reply
12The Tribunal is in receipt from an email from Eastern in which it asserts that the applicant has not delivered all of its Reply.
13In order for the Tribunal to accept the applicant’s Reply he must confirm that he has sent to Eastern the Reply and all documents attached thereto.
ORDER
14The Tribunal orders:
a. The Application as against Rogers Communications Partnership is dismissed, and its name shall be removed from the title of proceeding of any future decision;
b. Eastern Independent Telecommunications Ltd.’s Request to dismiss the Application pursuant to section 45.1 of the Code is dismissed; and
c. The applicant must deliver to the respondent his full Reply and file with the Tribunal a Form 23, confirming that this has been done within 7 days of the date of this Interim Decision.
NEXT STEPS
15Unless the parties advise, within seven days of the date of this Interim Decision that they agree to attend Mediation, this matter will be scheduled for a two day hearing.
16I am not seized.
Dated at Toronto, this 14th day of April, 2014.
“Signed by”
Geneviève Debané
Vice-chair