Rodores v. Conestoga Meat Packers Ltd., 2015 HRTO 56

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose Luis Rodores Applicant

-and-

Conestoga Meat Packers Ltd. and John Jurcic Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: January 15, 2015 Citation: 2015 HRTO 56 Indexed as: Rodores v. Conestoga Meat Packers Ltd.

APPEARANCES

Jose Luis Rodores, Applicant Self-represented

Conestoga Meat Packers Ltd. and John Jurcic, Respondents Steven Mendelsohn, Counsel

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

2By Case Assessment Direction (“CAD”) dated August 20, 2014 the Tribunal directed on its own initiative that a teleconference call hearing take place to deal with the issue of whether the Application should be dismissed in whole or in part under section 45.1 of the Code. The Application disclosed that the applicant filed an Employment Standards Act (“ESA”) Complaint with the Ministry of Labour where he made the same or similar allegations that are set out in the Application before the Tribunal and that the Complaint was settled and Terms of Settlement entered into and executed by the parties.

3The parties participated in the teleconference call on January 5, 2015.

4For the reasons that follow, this Application is dismissed.

5The purpose of section 45.1 of the Code is to avoid the duplication of proceedings and the re-litigation of issues that have been appropriately dealt with elsewhere. Section 45.1 of the Code provides 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.

6Generally, section 45.1 is considered in two parts: (1) was there another “proceeding” and (2) if so, did it “appropriately deal with” the substance of the application.

7With respect to the first issue, the Tribunal has held on a number of occasions that an ESA complaint process meets the requirements of a “proceeding” for the purposes of section 45.1 of the Code: see for example, Henderson v. Nutech Fire Protection, 2010 HRTO 2153. The Tribunal has also found that, for the purposes of section 45.1 of the Code, a “proceeding” need not involve a hearing or an opportunity to make oral submissions and may involve a settlement : see for example Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 (“Dunn”). In Dunn, the Tribunal held that a grievance settlement constitutes a “proceeding” that comes within the ambit of section 45.1:

I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and purposes of s. 45.1. The provision refers to a “proceeding” having “dealt with” the matter, rather than using narrower words that would only encompass adjudication like “decision” or “reasons”. More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceeding without recourse to litigation.

8For the above reasons I am satisfied that the settlement of the applicant’s ESA complaint is a proceeding within the meaning of section 45.1 of the Code.

9With respect to the second issue, the question is whether or not the ESA process appropriately dealt with the substance of the Application.

10In his ESA complaint the applicant lists three reasons for filing the claim: (1) “illegal termination/without proper notice”; (2) “racial discrimination”; and, (3) “others”. With respect to the first reason the applicant explained in the complaint: “Termination without any reason at all. I just applied within the company for the position of Barn Receiver with a higher rate than mine.” With respect to the second reason, the applicant indicated in his complaint: “I was not treated well by some co-workers the moment I started there to the point that I was bullied” and “threatened to kill me when I applied for the Barn Receiver Position”.

11In his Application, the applicant alleged “most of my co-workers bullied me”, that he felt discrimination when he “applied in another position with a higher salary” and “I got death threat nothing happened instead I got fired.”

12The remedial claim in both the ESA complaint and the Application was monetary compensation related to his dismissal from employment.

13In my view, the substance of the applicant’s Application has been appropriately dealt with in the ESA complaint process. The issues raised in the Application are the same issues that were raised and that would have been canvassed in the ESA compliant process, which ended in a settlement between the parties. In my view, the purpose of avoiding the duplication of proceedings and ensuring the finality of litigation would be seriously undermined if the Application is allowed to proceed.

14Accordingly, the Application is dismissed.