Ama Acheampomaah v. Clothing for Modern Times Ltd. and Omar Benidir, 2011 HRTO 1113

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ama Acheampomaah

Applicant

• and-

Clothing for Modern Times Ltd. and Omar Benidir

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: June 08, 2011

Citation: 2011 HRTO 1113

Indexed as: Acheampomaah v. Clothing for Modern Times

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 6, 2010 alleging discrimination in employment on the basis of race, colour, place of origin, ethnic origin, sex and family status.

2The applicant alleges that her employment was terminated after her return from pregnancy leave. The applicant alleges that the white woman she trained prior to her departure as her replacement was kept on in her position and that the respondents allegedly stated that this individual was more suitable. The applicant also alleges that the individual respondent made a remark about her appearance post-pregnancy that made her feel uncomfortable.

3The respondents filed a Response on December 30, 2010 denying the allegations of discrimination and harassment. In their Response, the respondents request that the Application be dismissed pursuant to section 45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application.

4The respondents submit that the applicant made a claim with the Ministry of Labour alleging a contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”) regarding the pregnancy and termination allegations as set out in the current Application. The respondents submit that the ESA claim was settled and this settlement constitutes a proceeding that appropriately dealt with the substance of the Application.

5By way of letter from the Registrar of the Tribunal, the applicant was invited to make submissions in her Reply with respect to the respondents’ request to dismiss.

6The applicant filed a Reply with submissions addressing the request to dismiss. The applicant submits that the ESA settlement did not appropriately deal with the substance of her Application because, while the ESA settlement may have dealt with the issue of statutory entitlement for termination/severance pay and pregnancy leave, the ESA settlement did not address the applicant’s allegations with respect to issues of racial discrimination and alleged harassing comment.

DECISION

7The purpose of s. 45.1 of the Code is to avoid the duplication of proceedings and the re-litigation of issues that have been appropriately dealt with elsewhere. Section 45.1 of the Code provides as follows:

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 45.1 is generally considered in two parts: (1) was there was another “proceeding” and (2) if so, did it “appropriately deal with” the substance of the application.

9With respect to the first issue, the Tribunal has held on a number of occasions that an ESA complaint process meets the requirements of a “proceeding” for the purposes of section 45.1 of the Code: see for example, Henderson v. Nutech Fire Protection, HRTO 2153. The Tribunal has found that, for the purposes of section 45.1 of the Code, a “proceeding” need not involve a hearing or an opportunity to make oral submissions and may involve a settlement: see for example Dunn v. Sault Ste. Marie (City), 2008 HRTO 149. In Dunn, the Tribunal held that a grievance settlement constitutes a “proceeding” that comes within the ambit of section 45.1:

I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and the purposes of s. 45.1. The provision refers to a “proceeding” having “dealt with” the matter, rather than using narrower words that would only encompass adjudication like “decision” or “reasons”. More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.

For the above reasons, I am satisfied that the settlement of the applicant’s ESA complaint is a proceeding within the meaning of section 45.1 of the Code.

10With respect to the second issue, the question is whether or not the ESA process appropriately dealt with the substance of the Application?

11The respondents argue that this Application should be dismissed because the ESA settlement considered the issues of pregnancy leave and termination. The respondents submit that the ESA settlement addressed the applicant’s remedial claims and that the applicant has been compensated for her lost wages.

12The applicant opposes the request to dismiss. The applicant submits that the ESA settlement did not deal with her allegations of discrimination and harassment because the ESA claim only considered the issue of pregnancy leave and statutory severance entitlements.

13The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the substance of the Application. Accordingly, for the Application to be dismissed at this stage of the proceedings, the respondents must show that the ESA claim appropriately dealt with the substance of the Application.

14I do not find the settlement reached in the ESA process is determinative of the Application. Although the ESA claim may have considered the applicant’s allegations with respect to pregnancy discrimination, there is no basis upon which to conclude that the claim also contemplated the applicant’s other human rights concerns.

15There is nothing before me that indicates the ESA claim considered and addressed the issues with respect to race and gender discrimination and harassment during the course of employment. In addition to her pregnancy allegations, the applicant has alleged that she was treated differentially because of her race, colour, etc. and further alleges that she was subjected to a disparaging remark in relation to her pregnancy and gender. As such, it cannot be concluded that the ESA settlement appropriately dealt with the substance of the various Code-related allegations in the Application.

16Accordingly, the request for dismissal under section 45.1 is denied.

17I am not seized of this matter.