Reeves v. David Johnson, 2016 HRTO 1245

Human Rights Tribunal of Ontario

B E T W E E N:

Harley Reeves

Applicant

-and-

David Johnson

Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana

Date: September 23, 2016

Citation: 2016 HRTO 1245

Indexed as: Reeves v. David Johnson

WRITTEN SUBMISSIONS

Harley Reeves, Applicant

Self-represented

David Johnson, Respondent

Paul Shaw, Counsel

1This Interim Decision addresses the respondent’s request for the dismissal of the Application pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and the applicant’s request to add a party.

2The Application alleges discrimination with respect to employment on the basis of sex, sexual harassment, gender identity and reprisal. The applicant alleges that the respondent sexually harassed her and terminated her and her fiancé, Quentin den Braber, who was also employed by the respondent.

Request to dismiss

3The respondent requests that the Tribunal dismiss the Application on the basis that Mr. den Braber pursued a claim against the respondent and Eco-Guard Pest Control Inc. before the Ontario Labour Relations Board (“OLRB”) alleging the same facts as in the Application. The matter before the OLRB was settled and the respondent provided confirmation of the withdrawal of Mr. den Braber’s claim.

4The applicant filed a Reply to the Response including submissions responding to the respondent’s request to dismiss as well as documents arising from the OLRB proceedings. The applicant opposes the request and submits that the OLRB proceeding did not deal with her allegations of sexual harassment. Mr. den Braber’s claim alleged reprisal and involved allegations relating to pest control jobs.

5Section 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.

6The Tribunal has generally considered section 45.1 in two parts: (1) was there another “proceeding” and (2) if so, did it “appropriately deal with” the substance of the Application.

7Having reviewed the matter, I am not satisfied that the substance of this Application has been appropriately dealt with by another proceeding.

8There is nothing before me that indicates the OLRB proceeding referred to by the respondent considered and addressed the applicant’s substantive allegations of discrimination and sexual harassment during the course of her employment. While the respondent submits that the applicant participated in that proceeding, it appears she was not a party to Mr. den Braber’s ORLB proceeding, which also dealt with allegations of health and safety issues under the Occupational Health and Safety Act.

9The respondent’s request is denied because another proceeding has not appropriately dealt with the substance of the Application. Given this determination I need not address the issue of whether there was in fact a “proceeding”.

10As the parties have agreed to mediate the Application, the Registrar will schedule a half-day mediation.

Request to add respondent

11The applicant filed a Request for an Order During Proceedings (“RFOP”) seeking to add Eco-Guard Pest Control Inc. as a respondent to this Application. The applicant was employed by the proposed respondent and the respondent David Johnson claims to be the manager of Eco-Guard Pest Control Inc. The applicant submits that she had intended to name both David Johnson and her former employer in her Application but inadvertently failed to name the corporate respondent.

12The respondent does not oppose the request and advises that the Response filed by the respondent would also apply to the proposed corporate respondent.

13On consent of the individual respondent, I grant the applicant’s request to add Eco-Guard Pest Control Inc. as a corporate respondent.

Request to consolidate

14In the Application, the applicant requests that her Application be joined with that of her fiancé, Mr. den Braber. The Tribunal does not appear to have an active file with Mr. den Braber, however if the applicant wishes to pursue her request, she is advised to file a Form 10 RFOP providing more information about the file she wishes to have consolidated with her Application.

ORDER

15For the reasons set out above, the Tribunal orders as follows:

a. The respondent’s request to dismiss the Application under s. 45.1 is denied. Since both parties have agreed to mediation, the Registrar will schedule a half-day mediation for this Application.

b. The applicant’s request to add EcoGuard Pest Control Inc. as a party is granted. The style of cause shall be amended accordingly.

16I am not seized of this matter.