Demarinis-Bianchi v. Hamilton, 2009 HRTO 1122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Claudia Demarinis-Bianchi Applicant

-and-

Graeme Hamilton Respondent

INTERIM DECISION

Adjudicator: Alan Whyte Date: July 23, 2009 Citation: 2009 HRTO 1122 Indexed as: Demarinis-Bianchi v. Hamilton

1In this Application filed December 3, 2008 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges discrimination in employment on the basis of sex. The applicant alleges that the respondent refused to reinstate her to her former position as his assistant following a pregnancy leave which commenced in June 2007.

2A hearing is scheduled for September 3, 2009 in Toronto.

3The purpose of this Interim Decision is to give notice of this proceeding to CIBC Wood Gundy (“CIBC“) which may be affected by the outcome of the case.

4The respondent is an independent broker with CIBC who employs assistants such as the applicant to assist him in his business.

5In her Application, the applicant describes her working arrangements with both the respondent and CIBC since her hiring in 2000 by the applicant and his then partner. The applicant's remuneration has typically been made up of both salary and bonus. Initially, the respondent was responsible for her salary and bonuses, however, once he attained a certain production level within his business, CIBC took over the applicant’s salary but the respondent was still responsible for paying her bonuses. Since at least 2003, the applicant has earned bonus which has been paid by the respondent.

6The applicant alleges that the respondent made a number of discriminatory remarks to her in a telephone call which took place on December 3, 2007. It is alleged that he advised her that she would not be returning to her former position.

7As of September 2008, CIBC attempted to obtain another position for the applicant but was unsuccessful. According to the applicant, after she mentioned to a representative of CIBC that she had been in touch with both the Labour Board and the Human Rights Commission, her previous position was offered to her in October 2008, but without any bonus. She did not accept this offer as she thought she would be forced to resign if she did.

8The Application indicates that the applicant is still working for CIBC at another branch, earning the same salary but is being paid a lesser bonus.

9The Response indicates that the applicant has been an employee of CIBC since January 2002. He identifies himself as being her manager at CIBC and he describes CIBC as “her employer”. He also indicates that she is currently employed by CIBC in an equivalent position at the same salary plus discretionary bonus. He goes on to indicate that her employer, CIBC, never terminated her.

10There is clearly an issue as to which of the respondent and CIBC is the applicant's employer, or whether both are. Although the applicant has not named CIBC as a respondent in this proceeding, in my view, it is possible that CIBC may be affected by the outcome of the proceeding and any remedy that may be awarded. Accordingly, CIBC is entitled to notice of the proceeding.

11A copy of this Interim Decision, the Application and the Response are to be delivered immediately by the Tribunal to the CIBC's legal department. CIBC is directed to deliver to the parties and file with the Tribunal by August 12, 2009 submissions as to the position it takes with respect to its participation in this proceeding. If CIBC wishes to intervene, it is directed to deliver to the other parties and file with the Tribunal a Request to Intervene in Form 5 by August 12, 2009.

12Upon receipt of these submissions and/or Form 5, the Tribunal will issue further directions as to the participation of CIBC in this proceeding.