Ernewein v. Bodyworks Express, 2017 HRTO 1177

Human Rights Tribunal of Ontario

B E T W E E N:

Renée Ernewein

Applicant

-and-

Bodyworks Express and Keren Giesche-Duncan

Respondents

DECISION

Adjudicator: Eban Bayefsky

Date: September 11, 2017

Citation: 2017 HRTO 1177

Indexed as: Ernewein v. Bodyworks Express

WRITTEN SUBMISSIONS

Renée Ernewein, Applicant

Self-represented

Bodyworks Express and Keren Geische-Duncan, Respondents

Self-represented

1The applicant filed this Application alleging discrimination in contracts on the ground of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that her employment contract with the respondents, requiring her to give 60 days’ notice of her termination of the contract, discriminated against her because her disability prevented her from giving the required notice.

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

3The applicant filed a claim under the Employment Standards Act, 2000 (“ESA”), alleging, in part, that the respondents owed her certain amounts in lost wages. On May 8, 2017, an Employment Standards Officer (“ESO”) dismissed the applicant’s claim on the basis that she had not been in an employer-employee relationship with the respondents, and that the ESA, therefore, did not apply to her.

4The respondents submitted that the ESO decision appropriately dealt with the substance of the current Application.

DECISION

5Section 45.1 of the Code states:

45.1 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.

6In my view, the ESO decision has not dealt with the substance of the Application because it did not address either the applicant’s substantive claims under the ESA or the human rights claims raised in her Application to this Tribunal.

ORDER

7For these reasons, the respondents' request to dismiss the Application under s.45.1 is denied and the Tribunal will continue to process the Application.

8Since the parties agree to mediation, the Tribunal will schedule a mediation and advise the parties of the time, date, and location of the mediation by Notice of Mediation.

9I am not seized of this matter.