Connie Noel v. Thomas Frater, 2009 HRTO 1646

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Connie Noel Applicant

• and -

Thomas Frater Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 9, 2009 Citation: 2009 HRTO 1646 Indexed as: Noel v. Frater

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on May 7, 2009, alleging discrimination in employment on the basis of sex (pregnancy).

2The respondent filed a Response on July 21, 2009, denying the allegation of discrimination and requesting that the Application be dismissed pursuant to section 45.1 of the Code on the basis that another proceeding has appropriately dealt with the subject-matter of the Application.

3By letter from the Registrar of the Tribunal, dated September 15, 2009, the applicant was invited to make submissions in her Reply with respect to the respondent's request. On September 29, 2009, the applicant filed a Reply with submissions addressing the request to dismiss.

4This Interim Decision addresses the respondent's request.

BACKGROUND

5The respondent submits that in the fall of 2008 the applicant made a claim with the Ministry of Labour alleging a contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the "ESA"), regarding the same factual circumstances as alleged in the current Application. The respondent enclosed copies of the ESA reasons for decision and order. The respondent argues that this Application should be dismissed because the parties, facts and issues considered in the ESA process are identical to the current Application. The respondent submits that the ESA decision is final and that the applicant has been compensated for her lost wages.

6The applicant argues the ESA process was merely a fact-finding investigation and therefore does not constitute a "proceeding" within the meaning of section 45.1 of the Code. The applicant submits that the legal question determined by the ESA decision (namely, was the applicant entitled to termination pay) is entirely separate and different from the human rights issues presented in the Application. The applicant further argues that the ESA decision failed to set out any reasons with respect to its findings and as such, it cannot be found to have appropriately dealt with the substance of the Application.

7In her ESA complaint, the applicant claimed that she had been dismissed as a form of reprisal because she was pregnant. As part of the ESA claim, the applicant sought termination pay, accrued vacation pay entitlement and general damages. On April 1, 2009, the Ministry of Labour issued an ESA decision finding that the applicant's allegation that her dismissal was pregnancy-based reprisal was not substantiated; however, it also determined that the respondent's claim that the applicant was dismissed for willful misconduct was not substantiated. The ESA decision ordered that the respondent compensate the applicant for eight weeks' pay in lieu of notice and vacation pay.

DECISION

8Section 45.1 of the Code provides as follows:

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.

9There are two parts to the inquiry under section 45.1: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application.

10I do not need to decide whether the ESA process is a "proceeding" within the meaning of section 45.1 because I find that the ESA process did not deal with the substance of this Application. The ESA decision did not set out any reasons for its findings. As such, it cannot be concluded that the ESA decision determined the Code-related allegations in the Application. Although the ESA decision held, without giving reasons, that the applicant's dismissal did not constitute pregnancy-related reprisal, it did not consider the issue of whether the applicant's pregnancy-related accommodation request was a factor in the decision to dismiss. The ESA order simply provided for the payment of vacation pay and termination pay, which are statutory entitlements under the ESA. As noted in Rockley v. Cradock, 2009 HRTO 143, at para. 4, "if this Application is successful, the ESA payments made by the respondent might be taken into account in determining the appropriate remedy, but would not necessarily or likely be the only remedy awarded."

11The request for dismissal under section 45.1 is denied.

12Given that both the applicant and the respondent have indicated a willingness to participate in mediation, the Registrar's Office will contact the parties in order to schedule a mediation in this matter.

13I am not seized of this matter.