Vishal Khanna v. Sears Canada Inc. and Shahid Iqbal, 2015 HRTO 500

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vishal Khanna Applicant

-and-

Sears Canada Inc. and Shahid Iqbal Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren Date: April 21, 2015 Citation: 2015 HRTO 500 Indexed as: Khanna v. Sears Canada Inc.

WRITTEN SUBMISSIONS

Vishal Khanna, Applicant Iain T. Donnell, Counsel

Sears Canada Inc. and Shahid Iqbal, Respondents Hena Singh, Counsel

Request for Dismissal under 45.1

1The applicant was employed with the corporate respondent from November 28, 2010. The applicant began working as a sales associate and in July 2012 he was promoted to sales manager.

2In June 2013, the applicant advised the corporate respondent that his brother had died in India. The corporate respondent granted the applicant a 10 day leave of absence so he could attend his brother’s funeral.

3The applicant did not return to work on the date scheduled as his return to work date following the approved leave of absence.

4The applicant did not attend work for the three weeks after the anticipated return to work date. He alleges that this was due to difficulties he had in obtaining travel documents for his return from India. On July 26, 2013 the corporate respondent sent a letter to the applicant stating that his employment had been terminated for abandoning his job.

5The applicant complained to the Ministry of Labour of Ontario alleging that the corporate respondent failed to comply with the Employment Standards Act, 2000 (the “ESA”) when it did not pay him vacation and termination pay. The Employment Standards Officer (ESO) issued a decision on March 11, 2014. The ESO ordered the corporate respondent to pay vacation and termination pay to the applicant.

6On July 21, 2014 the applicant filed this Application alleging discrimination with respect to employment on the basis of race, place of origin, ethnic origin, creed, marital status and reprisal or threat of reprisal.

7In their Response to the Application the respondents seek dismissal of the Application pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, As amended (the “Code”) on the basis that the ESA proceeding has appropriately dealt with the substance of the Application.

Section 45.1

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”.

10The 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. However, I am not satisfied that the substance of this Application was “appropriately dealt with” in that proceeding.

11In the applicant’s ESA claim there were two issues. First whether or not he was entitled to vacation pay. This issue is not one that is raised in the Application and it does not appear that the respondents are relying on that determination in support of for the request for early dismissal. The other issue was whether the applicant was entitled to termination pay under the ESA. The resolution of that issue required a determination about the conduct of the applicant and, more precisely, whether or not it constituted willful misconduct within the meaning of the ESA. The ESO concluded that the facts did not support a finding of wilful misconduct and the applicant was therefore entitled to receive termination pay.

12In my view the issue of whether the applicant’s conduct amounted to wilful misconduct is a different issue than is raised in this Application. The question as it relates to the applicant’s termination raised in this Application appears to be whether in terminating him the applicant failed to accommodate his Code related needs. This issue is not addressed in the ESA decision. I am not prepared, in these circumstances, to find that the ESO’s decision addresses any human rights issues in the absence of any reference to the Code and/or any human rights principles. The respondent’s Request to dismiss is denied because another proceeding has not appropriately dealt with the substance of the Application.

Request to File Amended Reply

13On December 15, 2014, the applicant filed a Request for an Order During Proceedings requesting to file an amended Reply, and a copy of the Amended Reply. The hearing of this Application is scheduled for August 10 and 11, 2015 and the parties have not yet exchanged all arguably relevant documents. The respondent is not prejudiced by this delay in filing the amended Reply. The applicant’s request to file an amended Reply is granted.

Order

14The Tribunal orders:

a. The respondent’s Request to dismiss pursuant to s. 45.1 of the Code is dismissed; and

b. The applicant’s request to file an amended Reply is granted.

c. Within 21 days of the date of this Interim Decision, the parties must exchange all arguably relevant documents and file a Statement of Delivery (Form 23) with the Tribunal.

15I am not seized.