Chen v. Harris Rebar, 2009 HRTO 227

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wenxiao Chen Applicant

-and-

Harris Rebar, A Division of Harris Steel Limited, Peter Spatola and Andrew Oliver Respondents

INTERIM DECISION

Adjudicator: David Muir Date: March 2, 2009 Citation: 2009 HRTO 227 Indexed as: Chen v. Harris Rebar

APPEARANCES BY

Wenxiao Chen, Applicant Glen Morrison, Representative

Harris Rebar, A Division of Harris Steel; Peter Spatola and Andrew Oliver Allison Taylor, Representative

1This is an Application filed November 7, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The Tribunal scheduled mediation for February 17, 2009. The respondents filed a Response on December 8, 2008.

BACKGROUND

2The respondents state that the applicant raised substantially the same issues in this Application, under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended and that the Ontario Labour Relations Board (the "Board") has issued a decision on this matter. The respondents assert that therefore the issues raised by the applicant are barred by the application of the legal doctrine of res judicata and that the Application should be dismissed pursuant to section 45.1 of the Code.

3A Case Resolution Conference was held to deal with this issue on February 24, 2009. An interpreter was present to assist Ms. Chen. No evidence was led by either party.

4Ms Chen was terminated from her employment in March 2004. She made a complaint under the Employment Standards Act that her employer, the corporate respondent here, had violated the Act in the manner in which it terminated her employment. The issue was framed by the applicant at the time as whether the employer had terminated her because she was intending to take a pregnancy leave. The employment standards officer framed the issue as whether or not the employee had been subject to a reprisal, prohibited under section 74 of the Act, because she was intending to take a pregnancy leave.

5The employment standards officer concluded that there was sufficient evidence to show that the fact that the applicant was pregnant and might take a leave as well as pregnancy related illness formed part of the reason for the termination of Ms. Chen's employment. An order to pay was issued.

6The respondent employer sought a review of the order to pay and a hearing was held at the Board. In a decision dated September 13, 2005, the Board overturned the decision of the employment standards officer and rescinded the order to pay. Ms. Chen's request for reconsideration of the Board's decision was dismissed by decision dated October 20, 2005.

7Following her termination, Ms. Chen also filed a human rights complaint on June 30, 2004.

8Following the decisions of the Board, the question of whether the complaint should proceed further or not pursuant to section 34 of the Code was raised. It appears that the Commission made a decision not to proceed but then reversed that decision and concluded that the decisions of the Board did not address Ms. Chen's termination from a human rights perspective and therefore the matter could proceed to the investigation and mediation stages of the Commission's process.

ANALYSIS

9Ms Chen submits that the Tribunal is bound by what she characterizes as a final decision of the Commission to allow the complaint to proceed. She also states that the respondent, if unhappy with that decision, should have sought reconsideration of it.

10The respondent is quite right in responding that the decision of the Commission is a procedural not a substantive determination and in no sense final. Furthermore as indicated by the respondents, section 37 of the Code as it was at the time did not allow respondents to seek reconsideration of a decision to refer a matter to investigation. In any event, a decision of the Commission of this kind is not finally determinative of the rights of the parties and is not binding on the Tribunal.

11The issue raised by the respondents' motion is whether or not this Application can be dismissed pursuant to section 45.1 of the Code which 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.

12The respondent raises in the alternative the common law doctrines of res judicata and issue estoppel as further bases for dismissing all or part of the Application. The Tribunal has concluded in other cases the provisions of section 45.1 are broad enough to capture the doctrines of res judicata, estoppel and abuse of process. See for example Campbell v. Toronto District School Board, 2008 HRTO 62.

13The pregnancy and parental leave provisions together with section 74 of the Employment Standards Act are in the nature of anti-discrimination enactments. The language of these provisions is broadly drafted to provide protection to women in the workplace who are, or may become, pregnant. Employment standards officers are given broad remedial powers to employ where a violation of these provisions is found. The heads of damages available are analogous to those available under the Code, including damages for lost wages, loss of reasonable expectation of ongoing employment and damages for mental distress, as well as the power to reinstate an employee to their employment in appropriate circumstances.

14It is clear that the issue between these parties from the beginning has been whether or not the decision to terminate Ms. Chen was in some way informed, influenced or tainted by the employer becoming aware of her pregnancy. Although framed in terms of a reprisal because of an intention to take a pregnancy leave, the real issue in the employment standards investigation was whether or not Ms. Chen had been terminated because she was pregnant or for reasons related to her pregnancy including her absences from work for illnesses related to her pregnancy.

15It also abundantly clear from the materials filed and submissions made at the Case Resolution Conference that the essence of the applicant's complaint as filed with the Commission and the issue for determination in this Application is whether the termination of Ms. Chen's employment was in some way related to her pregnancy and the possible effects of a pregnancy, such as illness, fatigue or some level of incapacity, or the fact that a leave might be sought in the future.

16These are precisely the issues that were before the Board when the respondent employer sought a review of the order of the employment standards officer. In submissions at the Case Resolution Conference, Ms. Chen sought to characterize the proceeding at the Board as a review of the quantum of the order to pay. This is an inaccurate characterization of that proceeding. A review of an employment standards officer's order or failure to make an order is not a review or an appeal but is a fresh hearing in respect of the underlying dispute giving rise to the employment standards claim.

17The Board, after hearing evidence from several of the key players in the dispute, in particular Ms. Chen and Mr. Spatola, the individual who made the decision to terminate, concluded that the decision to terminate was not tainted in any way by the fact of Ms. Chen's pregnancy. It is also clear from the decision of the Board that issues of whether her performance at work might have been affected by her pregnancy were considered in the hearing.

18For the Board the question boiled down to this:

Ms. Chen obviously feels the decision to terminate her stems from her absences and her pregnancy. Throughout her employment at both Mississauga and Stoney Creek she felt that she was being discriminated against unfairly and her work has not been properly assessed. For Ms Chen to succeed, I must determine that the decision to terminate her was tainted at least, in some small part by her pregnancy.

19The parties called their witnesses and made their arguments. The Board assessed the evidence including making credibility findings on the key questions before it. Despite the suspicious timing of the termination at almost the same moment the employer became aware of the pregnancy, the Board accepted the evidence of the respondent's witnesses that Ms. Chen's pregnancy had nothing whatsoever to do with the decision to terminate her employment.

20In these circumstances I am satisfied the proceeding before the Board appropriately dealt with the issues in dispute in this Application. Therefore, the Application is dismissed.