Henderson v. Nutech Fire Protection Co. Ltd., 2010 HRTO 2153

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chaundell Henderson

Applicant

-and-

Nutech Fire Protection Co. Ltd. and Jason Guja

Respondents

DECISION

Adjudicator: Eric Whist

Date: October 26, 2010

Citation: 2010 HRTO 2153

Indexed as: Henderson v. Nutech Fire Protection

APPEARANCES:

Chaundell Henderson, Applicant ) On her own behalf )

Nutech Fire Protection Co. Ltd. ) Firdaus Walele, Counsel and Jason Guja, Respondents )

1This Decision addresses the respondents’ request for dismissal of the Application under s. 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), based on a decision made by an Employment Standards Officer (“ESO”) which, the respondents submit, has appropriately dealt with the substance of the Application.

BACKGROUND

2On January 19, 2009, the applicant filed a complaint under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended, (the “ESA”) with the Ministry of Labour against Nutech Fire Protection Co. Ltd., the corporate respondent in this Application. The complaint alleges that the corporate respondent made changes to the applicant’s terms of employment, specifically her job description, after it became aware that the applicant was pregnant. The ESA complaint alleges that the corporate respondent reprised against the applicant by withholding Christmas bonuses from her and Frank Perilli, a co-worker and the father of the applicant’s child, because her lawyer had claimed in a letter that the corporate respondent’s treatment of her following the announcement of her pregnancy contravened the ESA. The complaint alleges that the subsequent termination of the applicant and Mr. Perilli’s employment on December 29, 2008 was a further act of reprisal under the ESA and because the applicant was pregnant.

3On April 16, 2009, an Employment Standards Officer held a meeting with the applicant and representatives of the corporate respondent to consider the applicant’s claim. On May 13, 2009, the ESO released her decision based on the documents submitted by the parties and the oral evidence and arguments provided by the parties and their witnesses. The ESO considered whether there had been a violation of section 74 of the ESA. This provision states, in part, that an employer shall not intimidate, dismiss or otherwise penalize an employee for exercising or attempting to exercise a right under the ESA which, in this case, was the applicant’s right, under the ESA, to take pregnancy leave.

4The ESO found that the corporate respondent’s decision to develop and implement a new job description for both the applicant and Mr. Perilli was made for bona fide business reasons and was not related to the applicant’s pregnancy and interest in pregnancy leave and was therefore not a violation of section 74 of the ESA. The ESO found that the terminations of the applicant and Mr. Perilli’s employment on December 29, 2009 were as a result of the applicant and Mr. Perilli’s own actions and as such were not acts of reprisal for the applicant trying to exercise her rights under section 74 of the ESA.

5However, the ESO found that the decision not to give the applicant and Mr. Perilli Christmas bonuses was motivated, at least in part, by the applicant’s lawyer’s letter of December 15, 2008 reminding the corporate respondent of the need to comply with the ESA. The ESO determined that the failure to award Christmas bonuses to the applicant and Mr. Perilli was an act of reprisal in contravention of section 74 of the ESA. The ESO ordered the corporate respondent to pay the applicant $1,500 for pain and suffering and $300 for the bonuses lost by the applicant and Mr. Perilli. Neither the applicant nor the corporate respondent applied to the Ontario Labour Relations Board for a review of the ESO’s decision.

6On December 7, 2009, the applicant filed an Application with the Tribunal under section 34 of the Code, alleging discrimination in employment on the basis of sex, family status and reprisal. The Application provides a narrative of events from November 12, 2008, when the personal respondent allegedly learned that the applicant was pregnant, to December 29, 2008, when the applicant and Mr. Perilli had their employment terminated.

7In their Response, the respondents requested that the Application be dismissed on the basis that another proceeding, namely the proceeding before the ESO, has appropriately dealt with the substance of the Application.

8In an Interim Decision dated May 31, 2010 (2010 HRTO 1211), the Tribunal decided that an oral hearing would be held to determine whether the Application should be dismissed pursuant to s. 45.1 of the Code on the basis that the substance of the Application had been appropriately dealt with in the ESO’s decision. A half-day hearing was held on October 15, 2010.

9At the hearing, the respondents submitted that the ESO appropriately dealt with the substance of the Application by considering the applicant’s claim that she was treated differently by the respondents because she was pregnant during the period of November to December 2008, and by making clear findings in relation to the applicant’s allegations of discriminatory treatment.

10At the hearing, the applicant did not dispute that her complaint under the ESA dealt with the substance of her Application but noted two exceptions. The applicant stated that in her Application, unlike her ESA claim, she asks for financial compensation for the termination of her employment and she alleges that the respondents deliberately withheld her and Mr. Perilli’s sales commissions for November and December 2008 because of her intentions to take pregnancy leave. The applicant stated that she had been prepared to include these issues in her claim under the ESA until she received legal advice that she should only raise them as part of an Application before the Tribunal. The applicant explained that she was given this advice because the Tribunal could award a greater amount of financial compensation for the termination of employment than could be awarded under the ESA process and that she could file a further Application with the Tribunal by adding allegations of discrimination (i.e. not receiving her November and December 2008 sales commissions).

ANALYSIS

11Section 45.1 of the Code states

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.

12In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal held that it was helpful 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. In order to determine whether another proceeding has appropriately dealt with the substance of the Application, in whole or in part, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding and whether the substance of the issues raised in each forum was substantially the same. See Rotondo v. Village Millcraft Apartments, 2009 HRTO 313.

13I find that the proceeding before an ESO in this matter is a “proceeding” within the meaning of section 45.1 of the Code. I am also satisfied that the Application arises out of the same facts and issues that were before the ESO. This was not in dispute except for the two additional issues raised by the applicant, which I will address later. I am further satisfied that the ESO appropriately dealt with the substance of issues in the Application that were before her.

14It is clear to me that the central issue in both the proceeding before the ESO and in the Application before the Tribunal is whether the applicant was differentially treated by the respondents during the period of November to December 2008 because she was pregnant. It is true that the ESO was considering this issue through the statutory framework of the ESA rather than the Code. However, the ESA’s provisions protecting the right of women to take pregnancy leave are anti-discriminatory provisions that substantially afford the same protections as those provided by the Code. An ESO has considerable authority under the ESA to order remedial actions in cases where the ESA has been violated. As stated in the Tribunal’s decision in Chen v Harris Rebar 2009 HRTO 227 at para. 13:

The language of these provisions [the ESA’s pregnancy leave provisions and section 74] is broadly drafted to provide protection to women in the workplace who are, or may become, pregnant. Employment standards officers are given broad remedial powers to employ where a violation of these provisions is found. The heads of damages available are analogous to those available under the Code, including damages for lost wages, loss of reasonable expectation of ongoing employment and damages for mental distress, as well as the power to reinstate an employee to their employment in appropriate circumstances.

15It is also clear, in my view, that the ESO considered and applied human rights principles in determining whether the applicant’s pregnancy was a factor in the respondents’ actions. The ESO decided that the applicant’s pregnancy did not impact the issuing of new job descriptions and the terminations of the applicant and Mr. Perilli’s employment but that it was a factor in the respondents’ decision to withhold Christmas bonuses. The ESO’s assessment of $1800, including $1,500 for emotional pain and suffering for this violation of the ESA, is comparable to a remedy the Tribunal could award under the Code.

16The Application also alleges that the applicant was discriminated against because of family status for “dating an employee who was also fired” and for reprisal for having attempted to enforce her human rights by means of pursuing her rights under the ESA.

17Family status refers to being in a parent child relationship under the Code. It appears the applicant is actually alleging discrimination based on marital status based on her relationship with her partner and father of her child, Frank Perilli. The contention is that the treatment the applicant received was, in some measure, because of her relationship with Mr. Perilli and, it appears, his conduct.

18The ESO’s decision does not explicitly consider an allegation of discrimination based on marital status but in my view her determinations regarding both the applicant and Mr. Perilli sufficiently address this issue. The ESO determined that the change in job descriptions that affected both the applicant and Mr. Perilli was made for bona fide business reasons not based on the applicant’s or Mr. Perilli’s conduct (or the applicant’s pregnancy). The ESO determined that the termination of Mr. Perilli’s employment was due to his own actions and that the applicant’s subsequent dismissal later the same day was because of her actions, not Mr. Perilli’s, and that neither of these terminations were related to the applicant’s pregnancy.

19Furthermore, when the ESO determined that the failure to give the applicant her Christmas bonus contravened the ESA, she also concluded that the withholding of Mr. Perilli’s bonus was unfair treatment. The ESO subsequently awarded damages that included $150 for Mr. Perilli’s lost bonus and acknowledged the fact that the way Mr. Perilli was treated affected the applicant. The ESO records in her decision, “Due to the relationship between Chaundell Henderson and Frank Perilli, actions taken against him affects her. Therefore, an assessment made on behalf of Chaundell Henderson includes losses suffered by Frank Perilli and/or the family unit.”

20The ESO was alert and alive, in my view, to the issue of whether the respondents’ actions in relation to the applicant were, in some measure, because of her relationship with Mr. Perilli and his specific conduct. It would appear that the applicant’s particular concern was that she lost her employment because Mr. Perilli was dismissed for having confronted the personal respondent and allegedly had implied a possible resort to physical violence. However, the ESO explicitly found that the termination of the applicant’s employment shortly after Mr. Perilli’s was because of the applicant’s own conduct and was not retribution for Mr. Perilli’s conduct.

21The Application also alleges that the respondents subjected the applicant to reprisal. Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

22In Noble v. York University, 2010 HRTO 878, the Tribunal considered the purpose and application of the reprisal provision in the Code at para. 30:

The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation. It protects the integrity of the process before the Tribunal, as well as in other complaint procedures that may be established under human rights policies.

23The issue of reprisal for the applicant’s assertion of her right to take pregnancy leave and not be reprised against for doing so was clearly before the ESO. The ESO considered whether the respondents had reprised against the applicant for attempting to enforce her rights in the context of the explicit reprisal provisions under section 74 of the ESA. Moreover, the ESO made clear findings that, in one instance, the applicant had been subject to reprisal for attempting to enforce her rights and that on all other occasions, including her dismissal, she had not. I am satisfied that the ESO appropriately dealt with this issue.

24For all of the above reasons I am satisfied that the ESO appropriately dealt with all the substantive issues in the ESA claim that were also raised in the Application.

25The applicant acknowledged that she deliberately did not include two issues in her claim under the ESA that she subsequently included in the Application, namely a request for financial compensation for her dismissal and an allegation that she and Mr. Perilli were denied sales commissions in November and December 2008.

26I have, in effect, already addressed the request that the Tribunal award the applicant financial compensation for the termination of her employment. I have determined that the ESA proceeding appropriately dealt with the termination of the applicant’s employment. Consequently, there is no need to determine what remedy might flow from a finding of discrimination under the Code.

27The allegations of discrimination related to the sales commissions were not before the ESO and, therefore, I cannot simply dismiss them on the basis that they have been appropriately dealt with. Nor do I have the authority under section 45.1 to dismiss them on the basis that they could have or should have properly been part of the claim filed under the ESA. However, there is an issue as to whether the applicant’s deliberate choice to hold back these allegations and raise them in the Application after the ESO process constitutes an abuse of the Tribunal’s process.

28In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 at paras. 52 and 55 the Tribunal outlined the relevant principles of the doctrine of abuse of process as follows:

Tribunals have the jurisdiction to stay or dismiss complaints if to proceed would amount to an abuse of process. In Ontario, this discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c.S.22, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

The Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity / mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice: CUPE, supra at para. 37. In the CUPE case, the issue was the relitigation of a criminal conviction in an arbitration proceeding. The Supreme Court’s reasoning has since been applied in the human rights context . . .

29The applicant acknowledges that she could have raised in her claim under the ESA the issue of whether the respondents’ failure to provide her and Mr. Perilli with sales commissions was related to her possible pregnancy leave. However, she acknowledged that she specifically decided to withhold these allegations until she filed an Application with the Tribunal. This was clearly a deliberate attempt to split her case and, consequently, provide her with two opportunities to litigate her claims of discrimination against the respondents. I am of the view that to allow the Application to proceed to address this specific allegation would constitute an abuse of process by unfairly exposing the respondents to further litigation and would violate the principles of judicial economy and the integrity of the administration of justice. (See Asiamah v. Olymel S.E.C. / L.P., 2009 HRTO 1750 where the Tribunal found an abuse of process for similar conduct.).

30For these reasons, the Application is dismissed.