HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Warren Skuse
Applicant
-and-
E.D. Smith Foods Ltd., William Campbell and Chris Bryant
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Date: May 23, 2014
Citation: 2014 HRTO 747
Indexed as: Skuse v. E.D. Smith Foods Ltd.
WRITTEN SUBMISSIONS
Warren Skuse, Applicant
Kathy-Chittley-Young, Counsel
E.D. Smith Foods Ltd., William Campbell and Chris Bryant, Respondents
Joseph Cohen-Lyons, Counsel
1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents have not yet filed a Response.
2On October 7, 2013, the Tribunal issued Interim Decision 2013 HRTO 1674, which deferred the Application pending the conclusion of the Employment Standards proceeding before the Ministry of Labour and any related reviews or appeals.
3On May 6, 2013, the applicant filed a Request to reactivate the Application on the basis that the other proceeding was concluded. On May 7, 2014, the Employment Standards Officer (the “ESO”) at the Ministry of Labour issued her Reasons for Decision (the “Decision”).
4The respondents oppose the Request to reactivate on the basis that the Application should be dismissed pursuant to section 45.1 of the Code.
Request to reactivate
5Though the respondents oppose the Request to reactivate on the basis that the Application should be dismissed pursuant to s. 45.1 of the Code the sole issue that the Tribunal must consider on such a Request is whether the other proceeding is concluded. Indeed, in order to consider the merits of the respondents’ Request to dismiss pursuant to section 45.1 of the Code, the Application must be reactivated.
6Having reviewed the materials before me it appears that the proceeding before the Ministry of Labour has concluded, since neither party has advised that it is appealing the Decision of the ESO. Therefore, it is appropriate to reactivate the Application. The Tribunal will therefore continue to process the Application.
Request to dismiss
7The applicant filed a claim with the Ministry of Labour seeking his termination and severance pay pursuant to the Employment Standards Act, 2000 (the “ESA’). The ESO found in the Decision that the applicant had not engaged in wilful misconduct or wilful neglect of duty and that the applicant was entitled to termination and severance pay.
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 and severance 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.
11I have considered the submissions of the respondent in support of their 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.
12In both Grioryev and Sara Lee Foodservice Ltd., 2014 HRTO 622 and Christy Little and Tele Tech Canada Inc., 2009 HRTO 1763 (two of the cases cited by the respondent) the ESO in those cases made findings of fact during the ESA proceeding which were incompatible with the applicant’s allegations that discrimination had occurred during the termination. Indeed, it appears that in both these cases the ESO considered the employer’s motives and made findings that discrimination had not occurred.
13The facts of this case are more similar to the Tribunal’s Decision in Nowlan v. World Meats Inc. reported at 2013 HRTO 747, in which the Tribunal declined to dismiss that application pursuant to s. 45.1 event though the ESO had made a finding of wilful misconduct.
14Similarly, in this case, the sole issue before the ESO was whether the applicant received his entitlement to termination and severance pay pursuant to the ESA. In making this determination the ESO reviewed whether the applicant was disentitled to termination and severance pay under the ESA. The ESO examined the applicant’s workplace conduct and determined that this conduct did not meet the threshold of wilful misconduct or wilful neglect of duty. The ESO determined that the applicant was owed termination and severance pay pursuant to the ESA. The applicant’s Code-related claims were never addressed by the ESO nor were they decided by the ESO. I note, also that unlike the leave and reprisal related sections of the ESA an ESO does not have a broad remedial discretion to remedy an allegation that an employer has not paid the appropriate termination and severance pay amounts. Indeed, the ESO’s remedial powers are limited to calculating the amounts owed and is subject to a maximum cap of $10,000 dollars.
15In addition, in this case there appears to be no findings of fact made by the ESO in the Decision which are inconsistent with the applicant’s allegations in the Application. There is therefore no concern that this application would lead to a result that is inconsistent with the ESA proceeding. As noted by the Supreme Court of Canada in British Columbia Worker’s Compensation Board v. Figliola, 2011 SCC 52, one of the purposes underlying 45.1 is to prevent inconsistent results that would undermine the administration of justice (at para 34).
16As such, in these circumstances the respondents’ 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”.
Order
17The Tribunal orders:
a. The applicant’s Request to reactivate is granted;
b. The respondents’ Request to dismiss is denied; and
c. The respondents must file with the Tribunal a full response to the Application within 35 days of the date of this Interim Decision.
18I am not seized.
Dated at Toronto, this 23rd day of May, 2014.
“signed by”
Geneviève Debané
Vice-chair