Felix v. Cara Operations Limited, 2015 HRTO 1381

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Felix

Applicant

-and-

Cara Operations Limited, Gokul Raj, Jason Samuel, Springer Bentley, and Vince Flores

Respondents

DECISION

Adjudicator: Dawn J. Kershaw
Date: October 16, 2015
Citation: 2015 HRTO 1381
Indexed as: Felix v. Cara Operations Limited

APPEARANCES

Hans Felix, Applicant
Self-represented

Cara Operations Limited, Gokul Raj, Jason Samuel, Springer Bentley, and Vince Flores, Respondents
E.C. Carla Zabek, Counsel

Introduction

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

2Pursuant to a Case Assessment Direction (“CAD”) dated April 24, 2015, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, because there was no reasonable prospect of success that the Application will succeed or because another proceeding has appropriately dealt with the substance of the Application (s. 45.1 of the Code).

3Both the applicant and respondents made oral submissions at the August 12, 2015 summary hearing by teleconference.

BACKGROUND

4The applicant self-identifies as Haitian-Canadian and alleges his employment with the respondent company was terminated on August 19, 2014 because of his race, colour, ancestry, place of origin or association.

5The applicant alleges a representative of the respondent company advised him he was terminated as a result of restructuring, which the applicant disputes. His termination letter states he was terminated on a without cause basis, which he submits is inconsistent with the reason he was given.

6He also alleges in the Application that other employees were given written warnings, whereas he received none before being terminated.

7After his termination, the applicant filed a claim pursuant to the Employment Standards Act (“ESA”) with respect to unpaid wages, termination pay, vacation pay and reprisal. An ESA officer (“ESO”), in an undated decision (the applicant provided to the Tribunal a copy of the ESO’s e-mail, dated November 4, 2014, in which he sent the applicant the decision), concluded that the applicant’s termination was in no way related to his having filed an Ontario Labour Relations Board (“OLRB”) appeal in respect of a prior employer, and that even if the respondent knew about the OLRB appeal, it provided legitimate business reasons for the applicant’s termination that were unrelated to it.

8It appears that in the ESA proceeding, the applicant did not raise or allege that Code grounds were a factor in his termination, but did dispute that restructuring was a factor and focussed his submissions on the allegation that the employer was reprising because of his involvement in an OLRB proceeding in respect of a previous employer. In his decision, the ESO stated that evidence before him was “strongly indicative that the employer was engaged in a phase of restructuring.” Among other findings, the ESO went on to conclude that “the evidence presented establishes that the claimant’s employment was terminated as a result of bona fide business decisions.” He concluded that the respondent was reorganizing, and the applicant’s termination was justified given his short tenure, his poor communication skills and his lower performance compared to his peers.

9After receiving the Application, the Tribunal requested in a March 18, 2015 letter that the applicant confirm he had appealed the ESA decision, but he did not do so.

10Toward the end of this hearing, the applicant advised he is appealing the ESA decision. As such, after the hearing I delivered to the parties an August 12, 2015 Case Assessment Direction directing the applicant to provide a copy of his ESA appeal by no later than August 17, 2015. I also directed the respondents to advise by August 24, 2015 if they wished to make further submissions, and they provided those in writing.

Parties’ Submissions

Section 45.1

11I asked the applicant for his position on the fact that the ESA decision in Claim No. 70144036-5 appears to deal with the same facts and issues as this Application.

12The applicant submits the ESA matter cannot deal with his discrimination claim. He submits various reasons why he disagrees with the ESA decision. When asked what he had to say about whether the Tribunal can proceed with his Application given the ESA decision, the applicant submits the respondent company’s reasons for termination do not make sense because there was no restructuring.

13The respondents submit the applicant is confused with respect to what it means to be terminated without cause. The respondents chose not to terminate the applicant with cause, and being terminated without cause was to the applicant’s benefit because he avoided a lengthy process and a lot of paperwork.

14The respondents submit that the ESA decision constitutes another proceeding and canvasses all the issues in this Application. It concluded that the applicant was terminated for legitimate business reasons.

15In reply, the applicant submits, as indicated above, that he is appealing the ESA decision. Subsequent to the hearing he provided a copy of his appeal, filed on August 16, 2015, four days after this hearing, in which he provided reasons why he filed the appeal outside the 30-day time limit.

16The respondents made submissions with respect to the applicant’s appeal of the ESA decision, but on October 2, 2015, the applicant delivered to the Tribunal the OLRB’s decision that dismissed the applicant’s appeal of the ESA decision as untimely.

No reasonable prospect of success

17The applicant alleges that in the week before he was terminated he told another full-time employee at the respondent company about another Ministry of Labour (“MOL”) matter he had commenced that was scheduled for a hearing three days after his termination. He alleges that person “might have advised” upper management at the respondent about the MOL hearing. He alleges the respondent company and the other company are connected because they are in the same industry.

18The applicant submits he was discriminated against and racialized by upper management due to the circumstances of his firing. He submits that he asked if he was the only one being terminated and was told he was not.

19He further states that the human resources person who terminated him asked him when she terminated him if he needed water and if he was okay to drive, which he said made him feel patronized.

20He also felt the respondent was patronizing in its letter that explained he was terminated without cause. He states he found out later the respondent hired others and there was no restructuring.

21The respondents submit that even if the applicant felt patronized by the respondent, this is not a human rights violation, but is really a complaint of unfair treatment, which the Tribunal has no power to address.

22They further submit that the applicant pointed to no additional evidence in his submissions that proves a link between his termination and any of the Code grounds.

23The applicant counters that in a July 27, 2014 e-mail, the other employees were not reprimanded for their mistake, yet he was. He submits that one of those employees was Chinese and the other was Indian, and the respondent seems to favour Chinese people.

DECISION

24The Application is dismissed pursuant to s. 45.1 of the Code because the ESA proceeding has appropriately dealt with the substance of the Application.

ANALYSIS

25Section 45.1 of the Code states 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.

26The Tribunal has held that, in determining whether to dismiss an application pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another “proceeding” and (2) if so, whether that proceeding “appropriately dealt with the substance of the application”.

27I have no difficulty concluding that the ESA hearing was another proceeding. See Wei v. Seneca College of Applied Arts and Technology, 2010 HRTO 2046, and Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690. The question remains whether it appropriately dealt with the substance of the Application.

28The case of British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, explains the importance of the finality of litigation and the avoidance of multiple proceedings. The Tribunal is not to stand in appeal of other decision-makers. In addition, an applicant should not be allowed to re-litigate a case. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. See also Paterno v. Salvation Army, 2011 HRTO 2298.

29In Claybourn v. Toronto Police Services Board (“Claybourn”), 2013 HRTO 1298, the Tribunal applied the Supreme Court’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, and found that in deciding whether another proceeding appropriately dealt with the substance of a human rights claim pursuant to section 45.1, the Tribunal must consider not only whether the issue before the Tribunal was decided in another proceeding, but also whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding, taking into account the nature of the other proceeding, the applicant’s stake in it, and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights. The reasoning in Claybourn subsequently has been applied by the Tribunal in ESA proceedings. See for example Carrier v. National Capital Region YMCA-YWCA (“Carrier”), 2014 HRTO 1106.

30It is clear the applicant disagrees with the ESA decision, but this is not a reason to allow the applicant to re-litigate. The applicant’s disagreement with the ESA decision is properly a matter for an appeal, not a re-litigation of the issues before another Tribunal.

31The facts in both proceedings are the same and the applicant had ample opportunity to make submissions on all issues in the ESA proceeding. While the applicant commenced the ESA proceeding only on the basis of reprisal and not on the bases of his race, colour, ancestry, place of origin and association, the ESA decision concluded that the respondent provided legitimate business reasons for the applicant’s termination. He stated that the respondent was reorganizing, and the applicant’s termination was justified given his short tenure, his poor communication skills and his lower performance compared to his peers. He also specifically concluded that the applicant’s termination was in no way a reprisal related to his having filed another unrelated OLRB appeal in respect of a prior employer. The ESO’s findings are inconsistent with the factual allegations underlying this Application.

32The essence of the allegations, that the Respondent terminated the Applicant’s employment because of his race, colour, ancestry, place of origin and association, were included in the “pith and substance” or essence of the Applicant’s arguments before the ESO. (See Qiu v. Neilson, 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. See also: Grigoryev v. Sara Lee Foodservice Ltd., 2014 HRTO 622, and Carrier, above, at paras. 15-16.

33In my view, the ESO’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 was to make contrary factual findings (i.e. that the applicant was not terminated as a result of the respondent restructuring its business).

34For these reasons, I find the Application must be dismissed because the substance of it was appropriately dealt with in the ESA proceeding.

35Because of my finding with respect to subsection 45.1, I need not address the no reasonable prospect of success arguments.

ORDER

36The Application is dismissed.