DaSilva v. Ron Mahon Equipment Limited, 2015 HRTO 712

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David DaSilva

Applicant

-and-

Ron Mahon Equipment Limited

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 1, 2015

Citation: 2015 HRTO 712

Indexed as: DaSilva v. Ron Mahon Equipment Limited

WRITTEN SUBMISSIONS

David DaSilva, Applicant

Self-represented

Ron Mahon Equipment Limited, Respondent

Kate Kahn, Counsel

introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondent filed a Response in which it asks the Tribunal to dismiss this Application on the basis that another proceeding has appropriately dealt with the substance of the Application.

2Even before the Response was delivered to the applicant, he brought a Request for an Order During Proceedings (Form 10) in which he asks to amend his Application and for production of certain information from the respondent. The respondent opposes both requests.

decision and analysis

Section 45.1

3The applicant filed a claim with the Ministry of Labour seeking his termination, severance, overtime and vacation pay pursuant to the Employment Standards Act, 2000 (the “ESA claim”). The parties settled the matter prior to a decision being made by an Employment Standards Officer (“ESO”). Moreover, the parties apparently did not sign a release with respect to other claims, pending or future. At the time the applicant settled the ESA claim, he had already filed this Application.

4Section 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.

5The 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”.

6Assuming 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.

7The applicant alleges that he was asked to perform duties outside his limitations following his workplace injury in 2006, and that when he declined to do them, there were repurcussions. He further alleges that the respondent took into consideration his disability in determining that he should be laid off. A claim for termination and severance pay simply does not deal with the substance of these allegations.

8Moreover, in the absence of any decision from an ESO, there are no findings of fact made by an ESO that could be inconsistent with the applicant’s allegations in the Application. A voluntary payment may well be taken into consideration in determining remedy, if any, but only after a finding on the merits. There is therefore no concern that the determination of this Application could lead to a result that is inconsistent with that made in another proceeding.

9As such, because another proceeding has not appropriately dealt with the substance of the Application, the respondent’s request to dismiss is denied.

Amendment of Application

10The applicant has made a request to amend his Application to include a further allegation that he received less renumeration than an employee whom he trained, which he states is also because of his disability. In his request, the applicant asserts that he just learned of this wage disparity.

11The respondent opposes this request on the basis that it does not constitute a prima facie allegation of discrimination. I disagree. This is an unproven allegation at this point, but one that suggests that the applicant may have been underpaid in comparison to another employee based on a prohibited ground, namely disability. I am prepared to allow this amendment, given that the respondent does not dispute that it was made in a timely fashion.

Production

12The applicant’s request for production is for the payroll documents necessary to prove the wage discrepancy discussed above. The respondent opposes this request on the basis that this is private information. It is not necessary for me to deal with the substance of the parties’ respective submissions as the request is premature.

13Rule 16 of the Tribunal’s current Rules of Procedure sets out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case.

14Under the Rules, the Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances, such as where a respondent is unable to file a Response or the applicant is not able to ascertain the identity or contact information for a proposed respondent.

15The applicant has not any identified exceptional circumstances in this case. The applicant’s request for production at this stage is denied as premature.

Order

16The Tribunal orders:

a. The respondents’ request to dismiss under s. 45.1 is denied;

b. The applicant’s Request to amend his Application to include the further allegation of wage inequity is granted;

c. The Respondent may file an amended Response within 35 days of the date of this Interim Decision to address this allegation; and

d. The applicant’s Request for production of payroll information is denied as premature.

17I am not seized.