VandenBerg v. Enterprises Marian Richard, 2010 HRTO 2094

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda VandenBerg Applicant

-and-

Enterprises Marian Richard Inc., Joe Basden and Marian Richard Respondents

AND B E T W E E N:

Linda VandenBerg Applicant

-and-

Enterprises Marian Richard Inc. and Joe Basden Respondents

Interim decision

Adjudicator: Brian Cook Date: October 18, 2010 Citation: 2010 HRTO 2094 Indexed as: VandenBerg v. Enterprises Marian Richard

1The applicant was employed at a Canadian Tire store. She alleges discrimination in employment on the grounds of family status, sex including sexual harassment and pregnancy, and marital status.

2The applicant has filed two Applications with the Tribunal. The first Application, File number 2010-05428-I, names Joe Basden and Marian Richard as personal respondents. A Response was filed with the Tribunal on behalf of the personal respondents and also Enterprises Marian Richard Inc., the corporation that operates the Canadian Tire store where the applicant was employed.

3The second Application, file number 2010-05640-I, names Joe Basden as a personal respondent. On July 15, 2010, counsel advised that he had not received a copy of the Application in file number 2010-05640-I.

Consolidation

4It is clear that the two Applications deal with the same factual issues and raise the same allegations and there is no apparent reason why two separate Applications have been filed. In the circumstances the Applications are joined and will be dealt with together from this point on.

5The Tribunal will deliver the second Application, 2010-05640-I, to the respondents. They must file their Response to that Application within the time required by the Rules or may inform the Tribunal if they wish to have the Response in file 2010-05428-I serve as the Response in both Applications.

Add Corporate Respondent

6It is also clear that the allegations in this case arose in the context of the applicant’s employment. The employer, which is a corporation, has filed a Response to Application 2010-05428-I and in these circumstances, Enterprises Marian Richard Inc. is added as a respondent in both Applications, and the style of cause in both Applications is amended to reflect this.

Refuse to Dismiss or Defer

7In the Response that was filed with the Tribunal, the respondents asked the Tribunal to dismiss or defer the Application because the applicant had filed a claim under the Employment Standards Act (“ESA”). The applicant has provided a copy of the claim and of the decision of the Employment Standards Officer. The applicant was invited to make submissions on the respondent’s request for deferral or dismissal but she did not make any submissions, and the time for doing so has passed.

8Deferral of an application may be considered if there is an ongoing process in another forum that may deal with some or all of the issues raised in the Application. In this case, it appears that the ESA process has been completed. The Employment Standards Officer came to a decision in regard to the applicant’s claim, and there is no indication that the matter is being appealed.

9Under section 45.1 of the Code, an application may be dismissed if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. The decision of the Employment Standards Officer deals with the applicant’s entitlement to severance and vacation pay. It does not deal with the human rights issues raised in the Application. I therefore find that the ESA process has not appropriately dealt with the substance of the Application.

Next Steps

10The parties have agreed to mediation. The Registrar will schedule these Applications for mediation.