Caldeira v. 2068006 Ontario, 2010 HRTO 920

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ines Caldeira

Applicant

-and-

2068006 Ontario Ltd. o/a ALCO Building Management,

Angela Athanassiou and Gonzalo Martinez

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: April 27, 2010

Citation: 2010 HRTO 920

Indexed as: Caldeira v. 2068006 Ontario

WRITTEN SUBMISSIONS BY

Ines Caldeira, Applicant ) Dijana Simonovic, Counsel

2068006 Ontario Ltd. o/a )

ALCO Building Management, ) Kyle Armagon, Counsel

Angela Athanassiou and )

Gonzalo Martinez, Respondents )

1This Application was filed pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination on the basis of sex in the context of employment. The applicant also alleges reprisal or threat of reprisal.

2The purpose of this Interim Decision is to determine whether the Application should be dismissed in whole or in part because its substance has been appropriately dealt with in another proceeding.

OVERVIEW

3The applicant states that she was sexually harassed by a co-worker. She alleges that the respondents terminated her employment at least in part because they feared she would take action against the corporate respondent regarding the harassment she had endured.

4The respondents filed a Response in which they deny the allegations and seek the early dismissal of the Application because they say another proceeding (before the Employment Insurance Board of Referees (“EIBR”) has appropriately dealt with the substance of the Application. The respondent has provided the Tribunal with a copy of the EIBR’s decision.

5In an earlier Interim Decision inviting submissions on the dismissal issue, 2010 HRTO 760, the Tribunal indicated the applicant had not filed a Reply. In fact, a Reply was filed with the Tribunal, but had not been brought to the Vice-chair’s attention before the Interim Decision was rendered.

6In response to the Interim Decision, the applicant has indicated that she does not wish to make oral submissions pursuant to section 43(2) of the Code. Accordingly, the Tribunal will determine the dismissal issue based on the written submissions of the parties, including the applicant’s Reply.

ANALYSIS

7Section 45.1 of the Code provides:

The Tribunal may dismiss and 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 45.1 requires me to determine whether, for the purposes of the Code: 1) the EIBR hearing constitutes a proceeding; 2) the EIBR matter was based on substantially the same facts and issues as the Application; and 3) the EIBR appropriately dealt with the substance of the Application. I address each of these issues in turn.

Is the EIBR process a proceeding?

9I am satisfied that a hearing conducted by the EIBR is a proceeding for the purposes of section 45.1 of the Code.

Did the previous proceeding appropriately deal with the substance of the Application?

Does the Application raise substantially the same facts and allegations?

10The applicant argues that the issues before the EIBR are different from those before the Tribunal. She states that, while the EIBR determined only whether the applicant lost her employment because of her own misconduct, the issues before the Tribunal are more extensive. They include:

a. was the applicant sexually harassed?

b. did the respondents know or ought they to have known about the harassment?

c. did the respondents respond adequately to the alleged harassment?

d. were the applicant’s allegations of sexual harassment a factor in her dismissal?

11The applicant argues that there is no overlap in the issues raised before each Tribunal. She argues that the legal framework applied by the EIBR is different from the analysis that ought to be performed by the Tribunal.

12In my view, there is some overlap in the issue addressed by the EIBR and the allegations contained in the Application. In both cases, the applicant has raised the issue of whether her allegations of sexual harassment were a factor in her dismissal.

13While the actual issue decided by the EIRB relates more directly to the applicant’s misconduct as a cause for her dismissal, it is nevertheless substantially similar to the issue set out at paragraph 8(d). In deciding that the applicant’s misconduct was the reason for her dismissal, the EIBR considered whether there were other plausible explanations for the termination of the applicant’s employment. In this regard, it specifically found that there was no relationship between the applicant’s reporting of the alleged harassment and her dismissal.

14I agree with the applicant that, to determine whether the dismissal was discriminatory, the Tribunal would inquire as to whether the allegations of sexual harassment were a factor in the applicant’s dismissal. The application of this legal test would require the Tribunal to make a finding of fact regarding the impact, if any, of the allegations of sexual harassment on the respondents’ decision to dismiss her.

15In my view, that is precisely the exercise engaged in by EIBR in this matter. The EIBR’s language is unequivocal and the conclusion reached is that the applicant’s allegations were not a factor and had no relationship to the dismissal. Although the EIBR did not reference human rights principles, it made a finding of fact and engaged in the same analysis that would have been required under the Code.

16I find, however, that the EIBR did not consider the additional issues raised by the Application, namely whether harassment occurred and whether the respondents met their obligations, if any, under the Code.

17In sum, I conclude that the EIBR addressed the allegations of discrimination in regards to the applicant’s dismissal. I find that the EIBR did not address the remaining issues raised in the Application.

Was the substance of the Application “appropriately dealt with” in the other proceeding?

18The applicant argues that, in any event, the substance of the Application was not appropriately dealt with in the EIBR proceeding. First, the EIBR did not explicitly consider any human rights principles in determining that the applicant’s reporting of sexual harassment had nothing to do with her dismissal. For the reasons set out at paragraph 13, I reject this argument.

19Second, the applicant cites a number of alleged faults in the EIBR hearing, namely that it did not give her an opportunity to explain the details of the alleged sexual harassment, at some point did not allow her to speak or ignored her, and questioned her decision to retain a human rights lawyer.

20These arguments certainly support the applicant’s position that the nature of the alleged sexual harassment and the respondent’s corresponding obligations under the Code were not addressed by the EIBR.

21However, the applicant makes no allegation that the EIBR did not hear her evidence as to the issues it decided, namely whether the allegations of sexual harassment played a role in the termination of her employment.

22While I appreciate that the applicant is dissatisfied with the proceeding before the EIBR, she was able to challenge the conclusions reached in that matter as well as the alleged procedural irregularities.

23The alleged procedural faults in this case do not lead me to the conclusion that the EIBR did not appropriately deal with the issue in question. Based on the submissions before me, I conclude that the EIBR’s decision appropriately dealt with the issue of whether the allegations were a factor in her dismissal. The EIBR conducted a hearing. On that issue, it considered the evidence presented by both parties. It concluded that the reason for the termination of the applicant’s employment was her misconduct and, more specifically, found no relationship between the allegations of sexual harassment and the applicant’s dismissal.

24Accordingly, I conclude that the applicant cannot further challenge the termination of her employment before this Tribunal. However, it remains open to her to try to establish that the Code was breached in other respects.

25I am not seized of this matter.