McConnell v. Unique Pool Supplies, 2010 HRTO 434

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danielle McConnell

Applicant

-and-

Unique Pool Supplies Ltd. and Rod Cotter

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: February 25, 2010

Citation: 2010 HRTO 434

Indexed as: McConnell v. Unique Pool Supplies

1The applicant filed this Application on May 12, 2009, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of sex. The applicant alleges that her employment was terminated because she was pregnant. The respondents deny the allegations and maintain that the applicant was terminated because she lied about her availability for work.

2This Interim Decision deals with the respondents’ request for early dismissal of the Application under s. 45.1 based on an Employment Standards Officer’s decision, which the respondents state has appropriately dealt with the substance of the Application.

3On May 5, 2009, the applicant filed a claim with the Ministry of Labour alleging a contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”). A decision was issued on December 2, 2009, a copy of which was filed by the respondents. In the decision, the Employment Standards Officer states:

The officer can understand the predicament the claimant was in when she was looking for work and knew she was pregnant. She was not hired by any other employers when she was interviewed when they learned she was pregnant. As a last resort she decided not to disclose this to Mr. Cotter during her interview… Mrs. McConnell was dishonest with the employer when she accepted the position knowing she would not be able to fulfill the term of the position.

4The officer goes on to conclude that the applicant was terminated not “because she was going to be taking a pregnancy leave but because she could not fulfill her obligations to the employer as she had stated.”

5The respondents take the position that the issue before the Officer was identical to that raised in this Application, namely whether the applicant was discriminated against because she was pregnant and/or requested pregnancy leave. The respondents argue that the Officer found that the reason for termination was the applicant’s dishonesty. They ask the Tribunal to defer to that finding and dismiss the Application on the basis that the decision in the other proceeding has dealt with the substance of the Application.

6The ESA decision was released on December 2, 2009. It notes that the claimant (the applicant in these proceedings) had 30 calendar days to appeal that decision. There is no indication that the applicant has appealed that decision.

7It is therefore necessary to consider the question whether the proceeding under the ESA has appropriately dealt with the substance of the Application pursuant to section 45.1 of the Code. Section 45.1 of the Code provides:

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.

8Section 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 two-hour hearing to consider whether the Application should be dismissed under s. 45.1.

9This hearing will proceed by way of teleconference unless the parties advise that an in-person hearing is required. The parties should make any request for an in-person hearing, and provide the reason for the request, to the Tribunal within 14 days of this Interim Decision.

10The 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 or Response, 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.

11In 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.