Jo-Ann Covacha v. Fenworth Dental and Dr. R. Diwan Dentistry Professional Corporation o/a Fenworth Dental, 2010 HRTO 1379

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jo-Ann Covacha Applicant

-and-

Fenworth Dental and Dr. R. Diwan Dentistry Professional Corporation o/a Fenworth Dental Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: June 18, 2010 Citation: 2010 HRTO 1379 Indexed as: Covacha v. Fenworth Dental

1In this Application, filed pursuant to s. 34 of the Ontario Human Rights Code, R.S.O. c. H.19, as amended, (“the Code”), the applicant alleges that she was discriminated against by the respondent on the basis of pregnancy when her employment was terminated.

2This Interim Decision addresses the respondent’s Request for an Order During Proceedings (“the Request”) to have the Application against it dismissed on the basis that it is not a proper party to the Application and it is the only named respondent. The Request was delivered to the applicant by the respondent as required by the Tribunal’s Rules of Procedure. The applicant did not file a response to the Request.

3The applicant alleges that the dental practice where she worked as a hygienist was sold to the respondent while she was on maternity leave. She submits that employees of the dental practice were to have been retained by the new owner. She submits that when she wanted to return to work following her maternity leave, the respondent terminated her employment.

4The respondent concedes that it purchased the dental practice where the applicant allegedly worked during the applicant’s maternity leave. The respondent submits that the applicant was not listed in the Agreement of Purchase and Sale as an employee of the business it was purchasing.

5The respondent’s Request raises an important question about whether the respondent is a proper party to the Application. It is not entirely clear from the Application whether the applicant alleges that the respondent terminated her employment on the basis of her pregnancy (and if so what facts support that conclusion) or whether she is alleging that the respondent is liable to her as the successor to her former employer.

6The applicant is hereby directed to make written submissions on the issue of whether the respondent is a proper party to the Application and if not, whether the Application should be dismissed. The applicant should deliver her submissions to the respondent and file them with the Tribunal within 14 days of the date of this decision. In her submissions, the applicant should clearly indicate whether she is alleging that the respondent itself violated her rights under the Code or whether she is alleging that the respondent is liable for an alleged breach of the Code by her former employer. The parties may wish to consider the Tribunal’s decision in Curling v. Victoria Tea Co Ltd., 2000 CanLII 20870 (ON H.R.T.), which considers the circumstances in which it is appropriate to hold a successor corporation liable for the discriminatory conduct of an agent of its predecessor corporation.

7If the applicant fails to provide the submissions as directed above, the Tribunal may conclude that the applicant has abandoned her Application and dismiss it accordingly.

8The above-noted decision, along with the Tribunal’s other decisions, are available online, for free, at www.canlii.org.