Alexander v. Longo Brothers Fruit Market Inc., 2015 HRTO 37

Human Rights Tribunal of Ontario

B E T W E E N:

Keith Alexander Applicant

-and-

Longo Brothers Fruit Market Inc. and Anthony Longo Respondents

INTERIM DECISION

Adjudicator: Paul Aterman Date: January 12, 2015 Citation: 2015 HRTO 37 Indexed as: Alexander v. Longo Brothers Fruit Market Inc.

WRITTEN SUBMISSIONS

Keith Alexander, Applicant Andrew Monkhouse, Counsel

Longo Brothers Fruit Market Inc. and Anthony Longo, Respondents Paul Wearing, Counsel

1This Interim Decision explains why the Tribunal is deferring consideration of this Application, which alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, gender identity and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2At the time this Application was filed the applicant was working for the respondent in preparing food. His employment has since been terminated.

3The Application alleges discrimination along racial and gender lines, mostly by co-workers. The Application alleges that the respondents knew of this conduct and did nothing to stop it, and that their discriminatory attitude is further demonstrated by the way in which they evaluated his performance.

4The applicant also launched a civil action in the Superior Court of Ontario (CV-14-511875) naming the respondents and another person. The civil action is for breach of contract and negligence. The negligence allegations focus on a workplace accident when the applicant fell down some stairs while carrying boxes of chicken wings. The breach of contract allegations appear to suggest that the applicant was not given the hours of work that he was promised by the respondents.

5In addition to these allegations, the statement of claim alleges that after the applicant filed this Application he was terminated from employment. This allegation is an allegation of reprisal contrary to the Code. While a Code violation is alleged in the statement of claim, it is not one that is captured by the Application because the respondents' alleged reprisal postdates the filing of his Application.

6The statement of claim also contains a number of allegations which may be interpreted as discriminatory conduct by co-workers and management. However, specific allegations of Code violations are not made and these allegations are rather vague.

7The respondents have not yet filed a Response to the Application. They have filed a request that the Application be deferred pending the resolution of the civil action. In support of their request they include the statement of claim in CV-14-511875. They also include a draft amended statement of claim which they obtained from applicant's counsel. The allegations in the draft statement of claim overlap significantly with the allegations in the Application and the court in the draft statement of claim is being asked to award damages for the alleged Code breaches.

8Pursuant to s.34(11) of the Code, the Tribunal will dismiss an Application if a civil action is seeking relief for the same alleged Code violations. The purpose is to prevent duplication of litigation. In this case the Tribunal issued a Notice of Intent to Dismiss the Application on those grounds and invited submissions on this issue.

9While the draft statement of claim would provide a basis for dismissing this Application, given the extent of the overlap between the two proceedings of both the issues and the relief sought, the draft is just that – a draft. It has not yet been filed with the court.

10What is left to be determined is whether s.34(11) applies to bar this Application because of the pleadings in the action which has been filed, namely CV-14-511875.

11In my view it does not operate to bar this Application because the civil action is largely framed in tort and contract. The only clear alleged violation of the Code is a reprisal allegation that postdates and is not included in the Application. In these circumstances s.34(11) does not apply.

12However, it is appropriate to defer consideration of this Application until CV-14-511875 is resolved. This is because there is still some overlap of facts and issues between the two proceedings. There is a risk of inconsistent findings as to how the applicant was treated by the respondents if both matters were to proceed in parallel. Further, the applicant's submissions in response to the Notice of Intent to Dismiss request deferral.

order

13Consideration of the Application is deferred until the action in CV-14-511875 is resolved.

14The parties' attention is directed to Tribunal Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the other proceedings.