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Descoteaux v. Hudson Bay Company, 2010 HRTO 638 — HRTO | minicounsel | minicounsel

March 24, 2010

Descoteaux v. Hudson Bay Company, 2010 HRTO 638

Case Summary

The respondent requested early dismissal of the human rights application under s. 45.1 of the Code, arguing that an Employment Standards Officer had already appropriately dealt with the substance of the applicant's claim regarding her termination while on maternity leave. The Tribunal noted that it cannot dismiss an application without affording the parties an opportunity to make oral submissions. Accordingly, the Tribunal directed the Registrar to schedule a half-day hearing to consider the s. 45.1 request and directed the parties to be prepared to make submissions on whether the Employment Standards Officer's determination constitutes a 'proceeding'.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lindsay Descoteaux

Applicant

-and-

The Hudson Bay Company

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: March 24, 2010

Citation: 2010 HRTO 638

Indexed as: Descoteaux v. Hudson Bay Company

[1] This Interim Decision deals with the respondent’s request for early 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 an Employment Standards Officer’s decision, which the respondent states has appropriately dealt with the substance of the Application. The applicant did not file a response to the Request and the time for filing a response has now elapsed.

[2] The applicant filed this Application on July 22, 2009, under s. 34 of the Code, alleging discrimination in employment on the basis of family status. The applicant alleges that her employment was terminated while she was on maternity leave. The applicant alleges that she was chosen for termination because she was on maternity leave because choosing another employee who was not on leave would have left the company short-handed.

[3] The respondent submits that the applicant’s termination was part of a company-wide restructuring whereby over 1000 employees across the company were terminated in 2009. The respondent submits that it decided to reduce the number of sales managers on the applicant’s team by one person. It submits that the decision to select the applicant as that one person, and the corresponding termination of her employment, was based on the applicant’s work performance and not on her maternity leave.

[4] The applicant appears to have filed a claim with the Ministry of Labour alleging a contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the “ESA”), on the same day she filed her Application with the Tribunal. The issue in the ESA claim was whether the respondent’s decision not to reinstate the applicant to a position following the completion of her pregnancy/parental leave was based on the leave.

[5] In December 2009, the Employment Standards Officer released her decision setting out the results of her investigation into the applicant’s complaint. The Officer found that the decision to terminate the applicant’s employment was part of a company-wide restructuring and based on legitimate work performance issues with the applicant which were raised with her before she requested her maternity leave. The Officer was satisfied that the termination of the applicant’s employment “was based on reasons unrelated to her leave”.

[6] The decision of the Employment Standards Officer was released on December 8, 2009. It notes that the applicant had 30 days from the date of being served with that decision to apply to the Ontario Labor Relations Board for a review of the decision. There is nothing before the Tribunal indicating that the applicant exercised that right.

Decision

[7] The issue before the Tribunal is whether the determination of the applicant’s claim under the ESA by the Employment Standards Officer was a proceeding which appropriately dealt with the substance of the Application within the meaning of section 45.1 of the Code. In making such a determination, the Tribunal will generally consider whether there has been a “proceeding” within the meaning of s. 45.1 of the Code, and if so, whether it has “appropriately dealt with the substance of the Application.”

[8] The Code provides that the Tribunal may not dismiss any Application within its jurisdiction without affording the parties an opportunity to make oral submissions. The Registrar shall schedule a half-day hearing to consider whether the Application should be dismissed under s. 45.1.

[9] With respect to the issue whether the Employment Standards Officer’s determination constitutes a “proceeding” within the meaning of s. 45.1, the parties should be prepared to make submissions on the Ontario Labour Relations Board’s (“OLRB”) decision in Baird v. Almas, [2002 CanLII 41846](https://www.minicounsel.ca/olrb/2002/41846), and the cases cited in that decision. In Baird, the Vice-Chair of the OLRB relied on the decision of the Ontario Court of Appeal in Re Downing and Graydon et al., (1978), [1978 CanLII 1424 (ON CA)](https://www.minicounsel.ca/oca/1978/1424), 21 O.R. (2d) 292, to find that employment standards officers, when determining claims, are exercising a judicial function and are bound by the requirements of natural justice (at paras. 40-52).

[10] The decision in Baird v. Almas, as well as decisions of the Ontario Human Rights Tribunal, may be accessed online, for free, at www.canlii.org.

[11] 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.

[12] I am not seized of this matter.

Dated at Toronto, this 24th day of March, 2010.

“Signed by”

Sheri D. Price

Vice-chair```