Mukherjee v. RMF Design and Manufacturing Inc., 2009 HRTO 2255

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rashmi Mukherjee

Applicant

-and-

RMF Design and Manufacturing Inc. and Richard Fine

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: December 23, 2009

Citation: 2009 HRTO 2255

Indexed as: Mukherjee v. RMF Design and Manufacturing

1This Interim Decision deals with the respondents’ request for early dismissal of the Application under s. 45.1 based on an Employment Standards Officer’s decision, which the respondents state has appropriately dealt with the substance of the Application.

2The applicant filed this Application on February 19, 2009, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of sex. The applicant alleges that her employment was terminated because she was pregnant.

3It would appear that the applicant filed a claim with the Ministry of Labour alleging a contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) the day before she filed her Application. The respondents were not made aware of the claim at the outset, but became aware of it when they were served with a Notice of Hearing.

4When the respondents became aware of the ESA claim, they filed a Request for Order During Proceedings (Form 10), asking that the Tribunal dismiss or stay the Application because another tribunal was dealing with what they allege was an identical claim. The applicant filed a Response to a Request for an Order (Form 11) opposing the request, and asserting that the claims were not identical.

5This request was superseded by the actual release of the Employment Standards Officer’s decision on September 30, 2009. In this decision, the Employment Standards Officer concludes: “Although the claimant has assumed she has been terminated based on the fact that she would have been eligible to take pregnancy/parental leave, the officer finds no evidence to support this claim.”

6The respondents filed a new Request for Order During Proceedings (Form 10) asking that the application be dismissed on the basis that the decision in the other proceeding has dealt with the substance of the Application. The applicant has filed no Form 11 in response.

7The ESA decision was released on September 30, 2009. It notes that the claimant (who is the applicant in these proceedings) had until October 30, 2009 to appeal that decision. The applicant has recently advised the Tribunal that she did not appeal the decision.

8Given that the applicant has not appealed the decision of the Employment Standards Officer, the question becomes one of whether or not the proceeding under the ESA has appropriately dealt with the substance of the Application pursuant to section 45.1 of the Code. Section 45.1 of the Code provides:

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.

9Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. Accordingly, the Registrar shall schedule a half-day hearing to consider whether the Application should be dismissed under s. 45.1.

10This hearing will proceed by way of teleconference unless the parties advise that an in-person hearing is required. The parties should make any request for an in-person hearing, and provide the reason for the request, to the Tribunal by January 8, 2010.

11If any party wishes to rely on written material not already filed with the Tribunal or any facts not contained in the Application or Response, the party should deliver such documents or information to the other parties and file the same with the Tribunal no later than 14 days before the scheduled hearing.

12In preparing for the hearing, the parties may wish to review section 45.1 of the Code, Rule 22 of the Tribunal’s Rules of Procedure, the Tribunal’s jurisprudence on those provisions (found at www.canlii.org) and the Tribunal’s Applicant’s Guide and Guide to Preparing for a Hearing before the HRTO available on the Tribunal’s website (www.hrto.ca) or from the Registrar’s office.

13I am not seized of this matter.