Martinez v. 2012342 Ontario, 2009 HRTO 111

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendy Martinez Applicant

-and-

2012342 Ontario Inc. c.o.b. University Centre Pharmacy and Saj Jiwaji Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: February 3, 2009 Citation: 2009 HRTO 111 Indexed as: Martinez v. 2012342 Ontario

1The applicant requests that the Tribunal expedite the hearing of this Application pursuant to Rule 21 of the Tribunal’s Rules of Procedure (the “Rules”). Rule 21.1 provides that an applicant may request “that the Tribunal deal with an Application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute”. Rule 21.2 requires an applicant seeking an expedited Application to identify urgent circumstances that may affect the fair and just resolution of the merits of the Application and the harm that may result if the request is denied. Where the Tribunal decides to expedite a proceeding, it may do so by abridging time limits, scheduling early dates, or taking any other steps it deems appropriate.

REQUEST TO EXPEDITE AND POSITIONS OF THE PARTIES

2The applicant, formerly a retail store manager with the corporate respondent, filed an application pursuant to s. 34 of the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”), alleging that the respondents discriminated against her on the basis of sex in respect of employment. Specifically, she alleges that the corporate respondent terminated her employment because she disclosed that she was pregnant with a due date of April 10, 2009 and that part of the explicit reason given for her termination was the fact that she was pregnant.

3In support of her Request to Expedite, the applicant cites the fact that she is in the last months of her pregnancy and is unable to attend a hearing in this matter close to her due date. The applicant also indicates that she will not be able to attend a hearing in this matter for some period of time after her baby is born, because he or she will require her full attention. The applicant also indicates that the termination of her employment has caused her considerable stress and anxiety, as well as financial hardship. Finally, the applicant states that because of her termination, the period of time she will be able to be off on maternity leave following the birth of her baby has been dramatically shortened from 12 to 6 months.

4The respondents consent to the applicant’s request that this proceeding be expedited.

DECISION

5Having considered this matter, the Tribunal is prepared to grant the applicant’s Request to Expedite in the particular circumstances of this case.

6The applicant alleges that the respondent’s actions had the effect of cutting the period of time she will be able to be off on maternity leave following the birth of her child from 12 months to 6 months. If the Application is not expedited, then even if the applicant is ultimately successful on the merits of her Application, she will lose out on a significant period of maternity leave to which she may otherwise be entitled. In the normal course, the hearing in this case would not be scheduled until after the applicant’s baby is born. The Tribunal accepts that it would not be reasonable to expect the applicant to prepare for and attend a hearing for some period of time after giving birth. For example, in Schafer v. Canada (Attorney General), 1997 CanLII 1508 (ON CA), 149 D.L.R. (4th) 705 at par. 68, the Ontario Court of Appeal recognized that “in order to cope with the physiological changes that occur during childbearing, biological mothers require a flexible period of leave [from work] that may be used during pregnancy, labour, birth and the postpartum period.” Given that fact and the corresponding time constraints, if this proceeding were not expedited, the applicant’s maternity leave would very likely expire and the applicant would be required to return to the workforce before a decision could be rendered by the Tribunal in the applicant’s case. Any of the remedial orders which might be available to the Tribunal at that point, such as an order for damages, could not adequately compensate the applicant for lost time with her infant after the fact.

7The Tribunal is also mindful of the fact that the respondents in this case consent to the applicant’s request and therefore there is no concern that dealing with the Application on an expedited basis might prejudice the respondent. Of course, although consent to the Request to Expedite is something the Tribunal will consider in accordance with Rule 21.2(c), consent by a respondent does not mean that the Tribunal will grant the request as a matter of course. Even where the parties to a particular dispute consent to having it dealt with on an expedited basis, the Tribunal has an interest in ensuring that proceedings are not expedited unless the circumstances warrant.

8In all of the circumstances, the Tribunal is satisfied that the particular circumstances in this case require an urgent resolution of the issues in dispute and the Application will therefore be dealt with on an expedited basis. To give effect to this, the Tribunal makes the following orders:

a) The respondents are directed to deliver to the applicant and file with the Tribunal (with a completed Statement of Delivery) their Responses by February 9, 2009, which is two days before the Responses would have been due in the normal course.

b) The applicant is directed to deliver to the respondents and file with the Tribunal (with a completed Statement of Delivery) her Reply to the Response, if she chooses to file one, by February 12, 2009.

c) The parties will deliver to each other and file with the Tribunal (with a completed Statement of Delivery) any arguably relevant documents and any documents upon which they intend to rely at the hearing by February 20, 2009. The time limits in Rule 16 are abridged accordingly.

d) The parties will deliver to each other and file with the Tribunal (with a completed Statement of Delivery) a list of the witnesses they intend to present to the Tribunal and a brief statement summarizing each witness’ expected evidence by February 20, 2009. The time limits in Rule 17 are abridged accordingly.

e) The matter will be set down for hearing in the first half of March 2009. The Registrar will send the parties a hearing notice confirming the hearing dates in due course.

9I am not seized.