HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Igor Grigoryev
Applicant
-and-
Sara Lee Foodservice Ltd.
Respondent
DECISION
Adjudicator: Aida Gatfield
Indexed as: Grigoryev v. Sara Lee Foodservice Ltd.
APPEARANCES
Igor Grigoryev, Applicant
Self-represented
Sara Lee Foodservice, Ltd., Respondent
George Waggott, Counsel
IntroductioN
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 on the basis of disability. The central allegation of the applicant is that he was terminated from his employment because he was on a medical leave from work. The respondent takes the position that the applicant was terminated because his position was eliminated because of restructuring and ultimate closure of the business in which the applicant worked.
2The purpose of this Decision is to address two issues:
whether the Application should be dismissed pursuant to section 45.1 of the Code; and
whether the Application should be dismissed in whole or in part on the basis that it has no reasonable prospect of success.
PROCEDURAL BACKGROUND
3The applicant filed an Application April 11, 2013 alleging that he was terminated from his employment because of disability. The respondent filed a Response on July 16, 2013. In its Response the respondent asked that the Tribunal dismiss the Application pursuant to section 45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application. The applicant filed a Reply, including submissions in response to the respondent’s request to dismiss, on September 17, 2013. By Case Assessment Direction dated October 25, 2013, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed in whole or in part pursuant to section 45.1 of the Code or whether the Application should be dismissed in whole or in part on the basis that it has no reasonable prospect of success. The summary hearing was held on March 28, 2014.
Section 45.1
4In his Application, the applicant alleges that on April 9, 2012 he was in a car accident. On April 10, 2012 he contacted the respondent and provided a medical note confirming his injuries and inability to work. The respondent responded confirming receipt of the medical note. The applicant commenced receiving benefits in accordance with the employer’s short-term disability plan. He alleges that he was paid at the rate of 72.5% of his wages when he should have been paid at 75%. On May 14, 2012 the applicant provided the respondent an updated medical note, which indicated that he would be off work until June 15, 2012. On May 15, 2012 the applicant received a letter terminating his employment. The letter indicated that the termination was due to the elimination of the applicant’s position. The applicant alleges that he was terminated because he was on medical leave. He also alleges that he was not paid the correct severance; he was paid 4 weeks’ pay in lieu of notice.
5The applicant filed a claim with the Ministry of Labour on October 29, 2012 pursuant to the Employment Standards Act, 2000. He claimed that he was in a car accident on April 9, 2012. The following day, April 10, 2012, he sent via fax a medical note to his employer advising them of his injuries. The medical note stated that he would be off work from April 10-May 11, 2012. The employer advised him that as of February 10, 2012 he had used up his 6 sick days and that he was now enrolled in the company short-term disability plan. He was in receipt of short-term disability benefits. The applicant claimed that he was paid at the wrong rate, receiving payment at 72.5% rather than 75%. The applicant further claimed that on May 14, 2012 he provided a medical certificate stating that he would be off work until June 15, 2012. On May 15, 2012 he received a letter advising that due to restructuring his position had been eliminated and that his employment had been terminated, without cause, effective May 15, 2012.
6The Employment Standards Officer found that “the employer, as a result of restructuring of its business, terminated claimant’s (sic) employment on May 15, 2012”.
7Section 45.1 of the Code states:
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.
8The Tribunal has held that the section 45.1 analysis consists of two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. (See, Campbell v. Toronto District School Board, 2008 HRTO 62).
Was there a proceeding?
9In this case the applicant filed a complaint with the Ministry of Labour pursuant to the Employment Standards Act, 2000. A decision was issued by the Employment Standards Officer dated July 11, 2013. The Tribunal has held that a decision by an Employment Standards Officer is a “proceeding” within the meaning of section 45.1. (See, Law v. Noonan, 2013 HRTO 437).
Did the Ministry of Labour proceeding appropriately deal with the substance of the Application?
10The issue on the second part of the test under section 45.1 is whether the Application arises from the same facts that provide the basis for the other proceeding, whether the substance of the issues raised in each forum was in pith or essence substantially the same and whether the matter raised was “appropriately dealt with” in the other proceeding.
11There is no question that the subject matter of the Application arises from the same facts that provide the basis for the complaint to the Ministry of Labour. As noted above, the Employment Standards Officer found that “the employer, as a result of restructuring of its business, terminated claimant’s (sic) employment on May 15, 2012.” This finding is inconsistent with the factual allegations underlying the Application. The essence of these allegations, that the Respondent terminated the Applicant’s employment because he was on medical leave, were included in the “pith and substance” or essence of the Applicant’s arguments before the Employment Standards Officer. (See Qiu v. Regional Municipality of York Police Service Board, 2009 HRTO 2187). In Qiu the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code.
12In my view, the Employment Standards Officer’s conclusion that the applicant was terminated as a result of the restructuring of the respondent’s business, makes it impossible for the Application to succeed unless the Tribunal were to make contrary factual findings (i.e. that the applicant was not terminated as a result of the respondent restructuring its business).
13Accordingly, I find that the Ministry of Labour proceedings appropriately dealt with the substance of the Application and it is dismissed.
14Given my findings above, I do not need to address whether the Application should be dismissed because it has no reasonable prospect of success.
Dated at Toronto, this 1st day of May, 2014.
“Signed by”
Aida Gatfield
Member