Luckham v. 1771141 Ontario Inc. o/a Securtrust Protection, 2016 HRTO 74

Human Rights Tribunal of Ontario

B E T W E E N:

Celia Luckham Applicant

-and-

1771141 Ontario Inc. o/a Securtrust Protection Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: January 18, 2016 Citation: 2016 HRTO 74 Indexed as: Luckham v. 1771141 Ontario Inc. o/a Securtrust Protection

WRITTEN SUBMISSIONS

Celia Luckham, Applicant Self-represented

1771141 Ontario Inc. o/a Securtrust Protection, Respondent Warren Rapoport, Counsel

1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent, the applicant’s former employer, has filed a Response in which it seeks the dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application.

3The applicant filed a complaint with the Ministry of Labour of Ontario alleging that the respondent failed to comply with the Employment Standards Act, 2000 (the “ESA”) in that the respondent did not pay the applicant sufficient termination pay when the applicant’s employment was terminated by the respondent. An Employment Standards Officer (“ESO”) investigated the matter and issued a Decision that there was no contravention of the ESA. The respondent has made a request to dismiss the Application on the basis that the proceeding before the ESO has appropriately dealt with the substance of the 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, it ought to consider: (1) whether there was another “proceeding”; and, (2) if so, whether it “appropriately dealt with the substance of the Application”.

6On the assumption without finding that the applicant’s claim for termination pay that was determined by the ESO was a “proceeding” within the meaning of s. 45.1, I am not satisfied that the substance of the Application was “appropriately dealt with” in that proceeding.

7The only issue before the ESO was whether the applicant received her entitlement to termination pay pursuant to the ESA. The applicant’s Code-related claims were never addresses by the ESO nor were they an issue in that proceeding. As such, the respondent’s request to dismiss is denied because another proceeding has not appropriately dealt with the substance of the Application. Given this finding, I need not address the issue of whether there was in fact a “proceeding”.

order

8The respondent’s request to dismiss the Application pursuant to 45.1 of the Code is dismissed.

next steps

9As the parties have agreed to mediation, the Registrar shall set a date for mediation and provide the parties with a Notice of Mediation setting out the time, date and location for the mediation.