Johnson v. Kingsville Stamping Limited, 2017 HRTO 1038

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kemear Johnson

Applicant

-and-

Kingsville Stamping Limited

Respondent

INTERIM DECISION

Adjudicator: Eban Bayefsky

Date: August 11, 2017

Citation: 2017 HRTO 1038

Indexed as: Johnson v. Kingsville Stamping Limited

WRITTEN SUBMISSIONS

Kemear Johnson, Applicant

Shane Martinez, Counsel

Kingsville Stamping Limited, Respondent

Mjay Kim, Representative

1The applicant filed this Application alleging discrimination in employment because of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically, the applicant alleged that the respondent failed to accommodate his disability and ultimately dismissed him because of it.

2The respondent requested the early dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application.

3Section 45.1 of the Code states:

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.

4The applicant filed a claim with the Ministry of Labour claiming wrongful dismissal and reprisal under the Employment Standards Act, 2000 ("ESA"). On July 12, 2016, an Employment Standards Officer ("ESO") dismissed the applicant's claim. The ESO found that she did not have jurisdiction to address the applicant's wrongful dismissal claim, and, after setting out the facts and relevant statutory provisions, stated that the "alleged reprisal did not occur for one of the above reasons...under the [ESA]...."

5I find that the ESO decision did not appropriately deal with the substance of the Application. While the Application arises out of the same workplace dispute as that addressed in the ESA proceeding, and while the ESO summarized the relevant facts in her decision, she did not indicate why she found that the ESA had not been breached, nor did she engage in any analysis of the issues of discrimination alleged in the instant proceeding. Accordingly, there is no basis to conclude that the issues in the Application before the Tribunal were determined in the ESA proceeding.

order

6For these reasons, the respondent's request to dismiss the Application under s. 45.1 is denied and the Tribunal will continue to process the Application.

7The applicant has agreed to mediation in this case, but the respondent has not. Within 14 days of the date of this Interim Decision, the respondent must advise the Tribunal whether it is willing to take part in a mediation. If so, the Tribunal will schedule a mediation and advise the parties of the time, date, and location of the mediation by Notice of Mediation. If not, the Tribunal will schedule a hearing and advise the parties of the time, date, and location of the hearing by Notice of Hearing.

8I am not seized of this matter.