In a recent interim decision, the Human Rights Tribunal of Ontario declined to dismiss an application on the grounds that the substance of the application was dealt with via an ESA decision rendered on the same facts.  The ESA decision had previously denied the applicant termination and severance pay under the ESA because of wilful neglect of duty.


In January 2013, the applicant advised her employer, TRQSS Inc., that she anticipated having childcare issues due to her mother falling ill. On May 1, 2013, the applicant advised that she required the day off because of these issues. The applicant also did not attend work on the following two days. The applicant was then informed that she would be considered to have resigned if she did not come in to work on May 6, 2013. The applicant failed to attend work on May 6, or the two days that followed. As per TRQSS Inc.’s Attendance Policy, the applicant was deemed to have voluntary resigned because of her continued absence. 

On May 10, 2013 the applicant filed a complaint under the ESA for the payment of her termination and severance pay. On February 5, 2014 an Employment Standards Officer determined that the applicant was not entitled to termination and severance pay because she had engaged in wilful neglect of duty.

The applicant had filed an application with the Tribunal on January 22, 2014 alleging discrimination on the basis of family status. TRQSS Inc. requested dismissal of that application pursuant to section 45.1 of the Code.

The Tribunal found the substance of the application was not “appropriately dealt with” in the ESA decision because it did not address any human rights issues, and was concerned only with the entitlement to termination and severance pay. Specifically, the Tribunal mentioned:

  • the lack of references to the Code or any explicit principles of accommodation in the decision;
  • the lack of discussion as to whether the respondent’s duty to accommodate was triggered when the applicant advised that she anticipated childcare issues; and
  • the lack of discussion as to whether the Attendance Policy had an adverse impact on the applicant.

Our views:

While section 45.1 of the Code does permit dismissal where another proceeding has appropriately dealt with the substance of the application, this decision is another in a line of cases where the Tribunal has deemed an ESA proceeding as insufficient to meet the test.  Other proceedings, such as civil actions or arbitrations, may offer greater prospects for a successful dismissal, as discrimination and harassment claims can be raised therein.