Sofia Man v. KPMG Canada, 2010 HRTO 2382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sofia Man Applicant

-and-

KPMG Canada, KPMG Global Resource Centre, KPMG LLP, and KPMG Management Services LP Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: November 30, 2010 Citation: 2010 HRTO 2382 Indexed as: Man v. KPMG Canada

Written Submissions BY

Sofia Man, Applicant ) Peter McSherry, Counsel

1This is an Application filed on May 17, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in respect to employment on the basis of sex and disability. The applicant alleges that her employment was terminated on February 3, 2010, a week after her employer learned that she was pregnant. The applicant also notes that she had three doctor’s appointments related to her pregnancy during the week of January 24 to 28, 2010, was absent from work on February 1 and 2, 2010, because of a cold and that she had morning sickness and drowsiness for several weeks, which she believes contributed to her dismissal and as such constitutes discrimination based on disability.

2The applicant also provided the Tribunal with a copy of an Employment Standards Claim she had made to the Ministry of Labour on February 3, 2010 (with a further written amendment on February 10, 2010). This claim alleges that she was discriminated against because of her pregnancy, that she was dismissed when the respondents learned that she was pregnant and had attended several doctor’s appointments. It refers to her sick days on February 1 and 2, 2010, and her morning sickness and drowsiness at work. This claim clearly deals with the subject matter of the applicant’s Application before the Tribunal.

3On September 24, 2010, the Tribunal wrote to the applicant to state that it had determined that it might be appropriate to defer the consideration of the Application pending the outcome of the Employment Standards Claim. The Tribunal indicated that the respondents were not required to file Responses to the Application in light of the deferral issue. The Tribunal invited the applicant and the respondents to make submissions as to why the consideration of the Application should or should not be deferred.

4The applicant provided written submissions to the Tribunal on October 4, 2010, asking that the Tribunal proceed with the Application. The applicant noted in her submissions that on June 10, 2010, a hearing was held by an Employment Standards Officer that dismissed her Employment Standards Claim. The applicant provided a copy of the Employment Standards Officer’s reasons for dismissing her claim. The Employment Standards Officer concluded in her reasons that the applicant’s employment was not terminated due to her pregnancy given that the employer did not know that she was pregnant until after she was dismissed.

5There is no need to for me to consider the issue of deferral in light of the fact that the applicant’s Employment Standards Claim has been resolved. It does not appear that the applicant filed an application for review of the Employment Standards Officer’s decision within the 30-day time limit. However, there is now an issue of whether the Application should be dismissed under section 45.1 of the Code on the basis that the applicant’s Employment Standards Claim and the subsequent decision by the Employment Standards Officer was a proceeding which appropriately dealt with the substance of the Application. Section 45.1 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.

DECISION

6The Tribunal will proceed to consider whether section 45.1 of the Code should be applied in the present case. Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. Accordingly, the Registrar will schedule a half-day hearing on whether the Application should be dismissed in whole or in part under section 45.1 of the Code.

7The parties are not required to provide any documentary disclosure at this point in time. However, if any party wishes to rely on written material not already filed with the Tribunal or any facts not contained in the Application, the party should deliver such documents or information to the other parties and file the same with the Tribunal no later than 14 days before the scheduled hearing. The respondents are not required to file Responses at this time.

8In preparing for the hearing, the parties may wish to review section 45.1 of the Code, Rule 22 of the Tribunal’s Rules of Procedure, the Tribunal’s case law on those provisions (found at www.canlii.org) and the Tribunal’s Applicant’s Guide and Guide to Preparing for a Hearing before the HRTO available on the Tribunal’s website (www.hrto.ca) or from the Registrar’s office.

9I am not seized of this matter.