Sutherland v. Comirand, 2010 HRTO 151

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raquel Sutherland Applicant

-and-

Daniel Comirand and Jaime Bradstock Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: January 25, 2010 Citation: 2010 HRTO 151 Indexed as: Sutherland v. Comirand

1Raquel Sutherland (the applicant) alleges that Just Energy Corp. (“Just Energy”), Daniel Comirand, and Jaime Bradstock discriminated against her in employment on the basis of sex contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant further alleges she was the subject of reprisal for claiming and enforcing her rights under the Code.

2The applicant’s allegations centre on when she returned to work for Just Energy in August 2009 following a maternity leave and communicated her intent to take a further maternity leave. The applicant alleges that after returning to work she was harassed and unfairly disciplined before being unfairly terminated in October 2009. The applicant identifies Jamie Bradstock as her “boss” and the person largely responsible for her discriminatory treatment. She further alleges that Daniel Comirand, her former employer, also discriminated against her by refusing to pay her certain agreed upon wages after she left his employ and began to work for Just Energy including during and after her maternity leave.

3This Interim Decision addresses the applicant’s request to withdraw her Application against Just Energy, a request from Jamie Bradstock for early dismissal of the Application against him on the basis of a final release the applicant signed with Just Energy and a request from Daniel Comirand for a deferral of the Application against him given a claim by the applicant pursuant to the Employment Standards Act, 2000.

Request to Withdraw

4The applicant filed her Application on October 14, 2009. On November 9, 2009 Just Energy wrote the Tribunal to state applicant had signed a separation agreement and general release with Just Energy on October 26, 2009 and that as a consequence Just Energy was asking that the Application against Just Energy be dismissed. On November 19, 2009 the applicant filed with the Tribunal a Form 9 Request to Withdraw her Application against Just Energy. Neither Jamie Bradstock nor Daniel Comirand have objected to this Request.

5In light of the fact that Just Energy and the applicant have entered into a separation agreement in regards to her employment, the Tribunal accepts the applicant’s request to withdraw her Application against Just Energy and the style of cause is amended.

Request for Early Dismissal by Jamie Bradstock

6Jamie Bradstock is not an employee of Just Energy. It appears he is an independent contractor acting as the regional distributor for Just Energy in its Kitchener regional branch which is where the applicant worked. It appears the applicant’s direct reporting relationship was with the National Recruitment Manager of Just Energy. However, the Application specifically identifies Jamie Bradstock as the applicant’s boss and repeatedly refers to his treatment of the applicant as being discriminatory.

7On December 11, 2009 Jamie Bradstock filed a Request for Early Dismissal pursuant to Section 6 of the Response which allows a respondent to request early dismissal without filing a full Response. Jamie Bradstock’s request is based on the applicant having signed a full and final release with Just Energy and Jamie Bradstock’s contention that as an agent or affiliate of Just Energy he is also likely covered by this release. Jamie Bradstock states he has not seen a copy of the agreement and release. The applicant has not filed a reply to Jamie Bradstock’s request nor have copies of the agreement and release been filed with the Tribunal.

8In order to address Jamie Bradstock’s request, the applicant is ordered to provide to the respondents and Tribunal a copy of the agreement and release she signed with Just Energy along with her submissions as to whether the agreement and release prevent her from proceeding against Jamie Bradstock within 14 days of the date of this Interim Decision.

9The respondents may deliver and file a reply to the applicant’s submissions within 14 days of receipt of the applicant’s submissions.

Daniel Camarind’s Request for a Deferral.

10Daniel Camarind is the owner and operator of CAM Energy Marketing Limited (“CAM Energy”). CAM Energy is an independent contractor who does work for Just Energy and who from June 2004 until May 2008 employed the applicant.

11In a letter dated January 7, 2010 Daniel Camarind requested that the Tribunal defer the Application pending the completion of a complaint made by the applicant under the Employment Standards Act 2000. Daniel Camarind included with his letter the first page of a letter from the Ministry of Labour Provincial Claims Centre stating that an Employment Standards Officer would be holding a meeting with Daniel Camarind and the applicant on January 14, 2010 at which time they would discuss the issues of “Reprisal-Pregnancy Leave and “Claimant alleges that she was not paid the same wage when she returned from leave and that she was harassed and intimidated.” It does not appear that Daniel Camarind provided a copy of his correspondence to the applicant (although he did provide a copy to Jamie Bradstock).

12The Tribunal may defer consideration of an Application at the request of a party but it will first give the parties the opportunity to make submissions. Accordingly, Daniel Camarind is directed to provide a copy of his January 7, 2010 letter requesting a deferral (including the attached letter from the Ministry of Labour Provincial Claims Centre) to the applicant and deliver and file any further written submissions he may wish to make on the issue of deferral within 14 days of the date of this Interim Decision. The applicant and Jamie Bradstock may deliver and file a reply to the applicant’s submissions, if they choose to do so, within 14 days of receipt of January 7, 2010 letter. The parties are specifically directed to address the status of the complaint made by the applicant under the ESA in their submissions.

13Upon receipt of the parties’ submissions, the Tribunal may consider the requests on the basis of the material filed or may issue further directions regarding the disposition of these Requests.

14I am not seized of this matter.