Anna Kuligowska v. Daniel Lee, 2009 HRTO 835

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Kuligowska

Applicant

-and-

Daniel Lee

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 12, 2009

Citation: 2009 HRTO 835

Indexed as: Kuligowska v. Lee

1This is an Application filed January 19, 2009, 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 and record of offences. She alleges that she was terminated after telling her employer that she was pregnant and after missing several days of work to attend court proceedings pertaining to another individual. In December 2008, the applicant filed a complaint with the Ministry of Labour under the Employment Standards Act, S.O. 1990, c. 41, as amended (the “ESA”), alleging that she was terminated because of her pregnancy, contrary to the ESA.

2The purpose of this Interim Decision is to consider whether the applicant can rely on “record of offences” as a ground of discrimination as well as the respondent’s request that the Application be dismissed because another proceeding has in whole or in part appropriately dealt with the substance of the Application.

RECORD OF OFFENCES

3The applicant marked “record of offences” as an alleged ground of discrimination on her application form. On the supplemental form the applicant answered “no” to the questions “Do you believe you were discriminated against because of your record of offences under a federal law (Criminal Code offence)?” and “Do you believe you were harassed or discriminated against because of your record of offences under provincial law (such as the Highway Traffic Act)?”

4The applicant’s narrative does not appear to allege that the respondent discriminated against her on the basis of record of offences. Section 10(1) defines record of offences as a conviction for:

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or

(b) an offence in respect of any provincial enactment.

5The applicant states that she does not believe she was harassed or discriminated against as a result of a conviction for either offence, and therefore the Application does not, on its face, allege discrimination on the basis of record of offences as defined in the Code. The applicant is required to deliver to the respondent and file with the Tribunal submissions setting out precisely the manner in which she alleges that the respondent discriminated or harassed against her on the basis of record of offences. She is to deliver her submissions within 14 days from the date of this Interim Decision. If the respondent wants to respond to the applicant’s submissions, he is to deliver his response to the applicant and file it with the Tribunal within seven days from the date of the applicant’s submissions.

EARLY DISMISSIAL OF THE APPLICATION BECAUSE OF ANOTHER PROCEEDING

6The respondent submits that on December 17, 2008, the applicant filed a reprisal complaint under section 74 of the ESA alleging that she was terminated because of her pregnancy. The respondent submitted a copy of a March 2009 decision from the Ministry of Labour, Provincial Claims Centre, Employment Standards Officer who determined the respondent did not violate the ESA and the applicant was not terminated because of her pregnancy (“the ESA proceeding”). The applicant did not file a Reply with the Tribunal and the time for doing so has now passed. The respondent requests that the Tribunal dismiss the Application because another proceeding (the ESA proceeding) has in whole or in part appropriately dealt with the substance of the Application.

7Section 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.

8In the circumstances, it is appropriate to determine as a preliminary matter the respondent’s request for an early dismissal of the Application because 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 without affording the parties a chance to make oral submissions. Accordingly, the Registrar is directed to schedule a hearing to address the following issue:

(a)Should the Application against the respondent be dismissed as a result of the ESA proceeding?

(b)Do the allegations based upon record of offences raise matters which the Tribunal has the power to decide?

10If either party wishes to rely on any written materials (including written submissions or documents) in addition to the submissions set out in paragraph 6 above, or rely upon any facts not contained in the Application or Response, it must deliver them to the other party and file them with the Registrar within 14 days of the date of this Interim Decision.

11In preparing for the hearing, the parties may want to review section 45.1 of the Code, the Tribunal’s jurisprudence on that section and the Applicant’s guide, pages 4 -5, available on the Tribunal’s website, www.hrto.ca, or from the Registrar’s office.

12I am not seized of this matter.