Strand v. TeleTech Canada, 2010 HRTO 158

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Spring Strand

Applicant

-and-

TeleTech Canada Inc., Kerri Dryden and Trevor Forrester

Respondents

Interim decision

Adjudicator: Keith Brennenstuhl

Date: January 25, 2010

Citation: 2010 HRTO 158

Indexed as: Strand v. TeleTech Canada

1This Interim Decision addresses the respondents’ Request for an Order during Proceeding seeking the dismissal of the Application pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). It also addresses the respondents’ request to strike part of the Application as an attempt to expand the Application beyond the subject matter of the complaint that was filed with the Ontario Human Rights Commission (the “Commission”).

2Counsel for the respondent has advised that the correct name of the corporate respondent is “TeleTech Canada Inc.”. The style of cause is amended to reflect the correct name of the corporate respondent.

The subject matter of the complaint

3The complaint filed with the Commission was based on discrimination due to disability and failure to accommodate. In identifying the ground of discrimination under question 5 of the Commission complaint form the applicant ticked off “Disability”. She did not tick off “Reprisal”. However, one of the financial remedies identified by the applicant in her application is “$10,000.00 for breach of my right to be free from reprisal in claiming and enforcing my rights under the Code”. The respondents argue that this is an attempt by the applicant to expand the Application beyond the complaint and should be disallowed.

4Rule 12 clearly states that a section 53(5) application will be based on the subject matter of the complaint as it was when abandoned at the Commission. The applicant argues that while she did not identify “Reprisal” as a ground of discrimination under question 5 the factual allegations outlined in the narrative of the complaint clearly raise the issue of reprisal. She points to that section of the narrative where she describes contacting the Commission, being told by the Commission to inform her employer about the duty to accommodate, so advising her employer and thereafter being placed on reduced hours.

5I find that in these circumstances the claim for reprisal as addressed in the Application is appropriate. The subject matter of the Application is identical to the subject matter of the complaint. The factual allegations in both are identical. This is not a case where additional factual allegations are being added; nor, is it an instance where the scope of the complaint is being expanded. In my view, it would be unduly technical to disallow the reprisal claim merely because the applicant failed to tick off “Reprisal” under question 5 of the complaint, given the applicant’s position that the factual allegations in the complaint raise the issue of reprisal.

Request to dismiss

6Section 45.1 of the Code reads as follows:

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.

7It is useful to consider s. 45.1 in two parts: (1) whether there was another “proceeding”; and, (2) if so, whether it “appropriately dealt with” the substance of the application. With respect to the latter, the Tribunal may consider whether the application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.

8The applicant made a claim under the Employment Standards Act (the “Act”) alleging that the corporate respondent violated the Act in that the corporate respondent reprised against her by terminating her employment because she exercised her right to personal emergency leave of absence.

9An employment standards officer issued a written decision on March 26, 2009 determining that the corporate respondent did not reprise against the applicant for taking emergency personal leave and that the applicant abandoned her job.

10I note that the alleged reprisal under the Act and the applicant’s cessation of employment with the corporate respondent occurred after the applicant had filed her complaint with the Commission. There is no suggestion in the decision that the officer considered whether the applicant had been mistreated because of disability or reprised against for exercising her rights under the Code.

11In describing events leading up to the applicant’s cessation of employment, the employment standards officer writes: “Firstly, the employer could not totally accommodate the claimant’s medical restrictions, in the job she was hired to do...”. The respondents argue that this was a finding that the respondents met their duty to accommodate under the Code. I disagree. In my view, this statement is intended to provide background or context only; it does not in any manner address the duty to accommodate under the Code.

12I find that the proceeding under the Act has not .dealt with the substance of the application.

13The parties have indicated an interest in pursuing mediation. The Registrar-Transition will contact the parties to schedule a date for mediation.