Way v. BridgeCo Foods Inc., 2017 HRTO 1465

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Oliver Way

Applicant

-and-

BridgeCo Foods Inc., McDonald’s Restaurants of Canada Ltd.,

David Parreira and Eroy Thompson

Respondents

INTERIM DECISION

Adjudicator: Eban Bayefsky

Date: November 6, 2017

Citation: 2017 HRTO 1465

Indexed as: Way v. BridgeCo Foods Inc.

APPEARANCES

Oliver Way, Applicant

Natasha Persaud, Counsel

BridgeCo Foods Inc., David Parreira and Eroy Thompson, Respondents

Samia Hussein, Counsel

McDonald’s Restaurants of Canada Ltd.,

Respondent

Russell Groves, Counsel

Introduction

1The applicant filed this Application alleging discrimination in employment on the basis 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 respondents first suspended, and then terminated, him despite knowing that he had a learning disability that caused him to be late for work.

2The respondents requested the early dismissal of the Application under s. 45.1 of the Code on the basis that another proceeding had appropriately dealt with the substance of the Application.

3On August 10, 2015, the applicant filed a claim under the Employment Standards Act, 2000 (the “ESA”) for termination and severance pay. In an undated decision, an Employment Standards Officer (“ESO”) allowed the applicant’s claim, and ordered the employer, BridgeCo Foods Inc., to pay the applicant termination and severance pay.

4On July 21, 2017, the Tribunal issued a Case Assessment Direction advising the parties that it had decided to hold a preliminary hearing to determine whether the Application should be dismissed, in whole or in part, under section 45.1 of the Code because the substance of the Application had been appropriately dealt with in another proceeding.

5The preliminary hearing was held on October 25, 2017 by teleconference.

6For the reasons that follow, I find that the Application should proceed.

legal framework

7Section 45.1 of the Code states that:

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.

8The Tribunal has interpreted section 45.1 as contemplating a two-step analysis. First, the Tribunal asks whether there was another proceeding. If the answer to that question is yes, then the second stage of the analysis is whether or not the substance of the Application has been appropriately dealt with by the prior proceeding. See, for example, Campbell v. Toronto District School Board, 2008 HRTO 62.

9In interpreting section 45.1, the Tribunal is guided by two decisions of the Supreme Court of Canada: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 51, and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19.

10According to Figliola and Penner, there are four questions to consider in order to determine whether another proceeding has appropriately dealt with the substance of the Application. These are:

(i) whether the other proceeding had concurrent jurisdiction to determine human rights issues;

(ii) whether the previously decided issues were the same as the issues complained of to this Tribunal;

(iii) whether there was an opportunity for the applicant or his or her privies to know the case to be met and have the chance to meet it; and

(iv) whether it would be unfair to use the results of the previous preceding to preclude the applicant from proceeding with this Application.

findings

11The applicant conceded, and I find, that the ESA claim was a proceeding for the purposes of section 45.1 of the Code. See, for example, Pinheiro v. Maritz Canada, 2012 HRTO 540, and Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443.

12However, while the parties raised, and the ESO considered, the issue of the applicant’s disability, I find that the resulting decision did not appropriately deal with the substance of the Application.

13In his decision, the ESO explained that, under the ESA, the applicant would not be entitled to termination or severance pay if he had been “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.”

14The ESO concluded as follows:

The claimant has provided a medical note from his doctor that indicates the claimant is affected by a learning disability that directly impacts on his ability to maintain a schedule and therefore impacts on his ability to be on time for work.

The exemption stipulates that the actions by the claimant that caused him to be fired must have been wilful. If the claimant has a learning disability that has been verified by his doctor and that disability speaks directly to the claimant’s ability to be on time I cannot find that the claimant was acting wilfully.

If a learning disability affects his ability to be on time this indicates that his lateness was not due to an intentional choice to be late or miss shifts, rather it was a consequence of his disability. Therefore, I find that the claimant is owed termination and severance pay.

15While the ESO had the authority to address the human rights issues raised in the Application, the issues he considered were significantly narrower than those in the current proceeding.

16The ESO only addressed the question of whether the applicant’s conduct was “wilful” within the meaning of the ESA and thereby disentitled the applicant to termination and severance pay. The ESO did not address the issues raised here of whether the respondent, BridgeCo Foods Inc., failed to accommodate the applicant’s disability and/or terminated the applicant on discriminatory grounds.

17The extent to which the Tribunal is bound by the ESO’s factual findings about the applicant’s conduct will be an issue to be decided by the adjudicator who conducts the merits hearing.

18In the circumstances, therefore, I conclude that the substance of the Application has not been appropriately dealt with in another proceeding, and that it should be allowed to proceed.

order

19The respondents' request that the Application be dismissed under section 45.1 of the Code is denied.

20As the parties have agreed to mediation, the Registrar will issue a notice of mediation.