Vonella v. Blake Jarrett and Company, 2011 HRTO 113

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elena Vonella

Applicant

-and-

Blake Jarrett and Company, Devin Melanson, Blake Jerret and Kelly Green

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: January 14, 2011

Citation: 2011 HRTO 113

Indexed as: Vonella v. Blake Jarrett

WRITTEN SUBMISSIONS

Elena Vonella, Applicant ) Katrina Marciniak, Counsel

Blake Jarrett and Company, )

Devin Melanson, Blake Jerret ) Stephen Shore, Counsel

and Kelly Green, Respondents )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination in employment because of sex. In essence, she alleges that her pregnancy was a factor in the termination of her employment.

2The purpose of this Interim Decision is to address the respondents’ Request that the Application be dismissed pursuant to section 45.1 of the Code.

3The parties have indicated that they do not wish to make oral submissions and have asked the Tribunal to determine the issue based on their written submissions.

FACTUAL BACKGROUND

4The applicant began working for the corporate respondent in May 2001. She was initially hired into the position of Office Manager but, in January of 2004, she was promoted to Operations Manager. The respondents state that this was in recognition of the wide variety of responsibilities that had been assigned to her on an ad hoc basis.

5While she was employed by the corporate respondent, the applicant was pregnant twice and took two periods of combined pregnancy and parental leaves. The first leave was from December 2006 to December 2007 and the second from November 2008 to November 2009.

6The applicant states that beginning in October 2006, the respondents began taking away her responsibilities and criticising her performance. She alleges her pregnancy and upcoming leave were factors in the respondents’ behaviour.

7The respondents state that the corporate respondent was restructured in November of 2006, shortly before the applicant’s first period of maternity leave. The respondents state that the restructuring was in response to organizational growth. It involved creating the position of Director of Operations, a position senior to that of Operations Manager.

8The respondents hired an external candidate to be the new Director of Operations. The respondents state that the applicant did not have the necessary skill set to be Director of Operations. They argue that the Director was not hired to replace the applicant, that the creation of the position was in response to business needs, and that the corporate respondent had planned to create a more senior position before it knew that the applicant was pregnant.

9The parties agree that there was a discussion about whether, given the fluidity of the corporate respondent’s business needs, it would be most appropriate to determine the scope of the applicant’s role following the restructuring closer to her return to work. The respondents stated that, by December 2006, many of the applicant’s “operational duties had already been dispersed into the various specialty business disciplines which emerged in the reorganization.”

10In December, 2007, upon her return from leave, the applicant was placed into the position of Supply Chain Manager. She reported to the Director of Operations.

11The applicant alleges that she was not assigned any meaningful work in this position. The respondents deny this and allege that the applicant began having performance, attendance, and attitudinal difficulties upon her return from leave. She was disciplined and placed on a performance management plan.

12The corporate respondent states that it suffered a downturn in business during the applicant’s second leave period. It states that it terminated the applicant’s employment on November 23, 2009 because of a shortage of work. The dismissal was effective before the end of the applicant’s second leave.

13The applicant alleges that her pregnancies and subsequent leaves were a factor in the corporate respondent‘s decision to terminate her employment. She also alleges that they were factors in the decisions to reduce her level of responsibility and deny her privileges (such as an office, business cards, and a corporate Costco membership).

14The applicant alleges that her work was unfairly criticized and that she was subjected to heightened scrutiny regarding, among other things, her breaks and hours of work. She further states that one of the corporate respondent’s vice-presidents made derogatory comment to her regarding her pregnancy, asking if she was pregnant or “just fat”.

15The respondents deny all of these allegations.

PROCEDURAL BACKGROUND

16On October 6, 2009, the applicant filed an Employment Standards Act, 2000 (“ESA”) claim, alleging breaches of the following sections of the ESA: s.42 (equal pay for equal work); s.53 (reinstatement for maternity return); and s.74 (reprisal). With regard to s.53, the applicant claimed that she had been reprised against for exercising her statutory right to pregnancy and parental leave.

17In an earlier Interim Decision, 2010 HRTO 1206, the Tribunal deferred consideration of the Application because of the ongoing ESA matter.

18The ESA matter was decided on June 16, 2010. An ESA officer awarded the applicant $173.08 in severance pay. However, the officer denied the applicant’s claim for equal pay for equal work and rejected her allegations of reprisal based on pregnancy and parental leave pursuant to the ESA.

19In a second earlier Interim Decision, 2010 HRTO 2158, the Tribunal granted the applicant’s Request to reactivate the Application.

20On September 30, 2010, the respondents filed a Request for an Order During Proceedings (“Request”) seeking the dismissal of the Application on the basis of section 45.1 of the Code. The respondents have filed detailed submissions arguing that the ESA proceeding appropriately dealt with the substance of the Application.

21On October 15, 2010, the applicant filed detailed written submissions objecting to the respondent’s Request to Dismiss.

ANALYSIS

22The purpose of s. 45.1 of the Code is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere. 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.

23Section 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.

Was there another proceeding for the purposes of s. 45.1?

24In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal held that, at the very least, a “proceeding” includes an adjudicative process established under a statutory regime.

25The applicant argues that the ESA complaint process is not a proceeding because it does not allow for an oral hearing or a face-to-face meeting and because there is no appeal process. She also argues that it is not a proceeding because the Statutory Powers and Proceedings Act, R.S.O. 1990, c. S. 22, as amended (SPPA), does not apply.

26In fact, the ESA does provide an opportunity to seek the review of an ESA officer’s decision made under section 74 of the ESA. The review is conducted by the Ontario Labour Relations Board (OLRB) and may include an opportunity for an oral hearing. See s.116 of the ESA.

27In any event, the Tribunal has held that, for the purposes of s.45.1 of the Code, a “proceeding” need not involve a hearing or an opportunity to make oral submissions. Similarly, a “proceeding” need not have an appeal mechanism and need not involve the application of the SPPA.

28For example, in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal held that a grievance settlement constitutes a “proceeding” for the purposes of section 45.1. In Haykin v. Roth, 2009 HRTO 2017, the Tribunal held that a complaint procedure under the Real Estate and Business Brokers Act, S.O. 2002, c. 30, as amended, constituted a proceeding even though some matters are determined based on written submissions alone.

29The Tribunal has, on a number of occasions, concluded that an ESA complaint process meets the requirements of a proceeding for the purposes of section 45.1 of the Code. See Poirier v. MacLean Engineering & Marketing, 2010 HRTO 1672; Little v. TeleTech Canada, 2009 HRTO 1763; Rockley v. Cradock, 2009 HRTO 143; Mukherjee v. RMF Design and Manufacturing, 2010 HRTO 2111; and Henderson v. Nutech Fire Protection, 2010 HRTO 2153.

30For the above reasons, I am satisfied that the ESA complaint is a proceeding within the meaning of section 45.1 of the Code.

Did the ESA process appropriately deal with all or part of the subject-matter of the Application?

The positions of the parties

31In this case, there is considerable factual overlap between the Application and the ESA complaint. The factual circumstances giving rise to the Application and the ESA claim are the same, although the nature of the allegations is different in each forum.

32Counsel for the applicant argues that the ESA matter did not appropriately address the substance of the Application. She advances the following two arguments:

a.The subject matter of the ESA claim is different from the subject matter of the Application. The issues before the ESA officer were whether the applicant’s exercise of a statutory right to a leave of absence was a factor in her dismissal and whether she was otherwise penalized for the exercise of that right. The applicant argues that the ESA officer did not determine the more general question of whether the applicant’s pregnancy (as opposed to her decision to take leaves of absence) was a factor in either her dismissal or the respondent’s treatment of her.

b.The test for reprisal under the ESA is different from the discrimination analysis required under the Code. The element of intent, which the applicant states is relevant to whether there is reprisal under the ESA is not part of a Code-related discrimination analysis.

33The respondents state that the issues raised in the Application have, in fact, been addressed by the ESA officer. More specifically, they argue:

a.the allegations in the Application regarding lack of meaningful work for the applicant while she was Supply Chain Manager are addressed in the ESA officer’s findings that the reorganization was reasonable and not a reprisal for the exercise of a statutory right; and

b.the allegations regarding the termination of the applicant’s employment are addressed in the ESA officer’s finding that the applicant would eventually have been made redundant and that her dismissal was not related to her exercising the right to take a parental or pregnancy leave.

34The respondents also argue that, when the issue raised in the ESA claim relates to pregnancy or parental leave, the enforcement of section 74 of the ESA requires the officer to determine whether the employee has been discriminated against on the basis of her sex, which is substantially similar to the analysis required under section 5 of the Code. According to the respondents, this is because both the Code and the ESA are anti-discrimination enactments.

The statutory framework

35The Application alleges discrimination pursuant to the Code in employment based on sex. The relevant provisions of the Code are:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

36Subsection 10(2) of the Code stipulates that the right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

37The relevant portion of the ESA complaint is based on sections 53 and 74 of the ESA. Those provisions state:

53(1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

[...]

(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.

74(1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a) because the employee,

(i) asks the employer to comply with this Act and the regulations,

(ii) makes inquiries about his or her rights under this Act,

(iii) files a complaint with the Ministry under this Act,

(iv) exercises or attempts to exercise a right under this Act,

38One of the rights available under the ESA is the opportunity to take leaves of absence, including pregnancy and parental leaves. See sections 46 and 49 of the ESA.

General comments on the statutory framework

39There is potential for significant overlap in these two statutory regimes, particularly in circumstances involving leaves of absence based on Code-related grounds, including pregnancy and parental leaves.

40As the Tribunal explained in Chen v. Harris Rebar, 2009 HRTO 227 (at paragraph 13):

The language of these provisions [the ESA’s pregnancy leave provisions and section 74] is broadly drafted to provide protection to women in the workplace who are, or may become, pregnant. Employment standards officers are given broad remedial powers to employ where a violation of these provisions is found. The heads of damages available are analogous to those available under the Code, including damages for lost wages, loss of reasonable expectation of ongoing employment and damages for mental distress, as well as the power to reinstate an employee to their employment in appropriate circumstances.

41I agree that sections 53 and 74 of the ESA often offer protection akin to what is available under the Code. However, while there is certainly a degree of overlap between the Code and sections 53 and 74 of the ESA, the two statutory regimes do not always correspond entirely.

42Both the Code and the ESA may allow for consideration of whether an applicant was penalized or disadvantaged because he or she sought to take a parental or pregnancy leave. However, while the language of the ESA relates to protection for those asserting a statutory right to a leave of absence, the language in Code is somewhat different and includes protection from discrimination on the more general basis of gender and pregnancy.

43In some instances, this distinction in the scope of the two statutory regimes may not be material. The nature of the allegations may be such that they can be addressed under either regime: see Henderson, supra.

44However, the difference in the scope of the two statutory regimes may be most apparent in cases, such as this, where an employee alleges that he or she was subjected to differential treatment prior to a maternity or parental leave. In such circumstances, it may be that the ESA decision will not address allegations that go beyond the issue of statutory leave and relate more generally to discrimination on the basis of gender and pregnancy.

45Depending on the circumstances, the analysis to be performed under each statute may be somewhat different. Chen, supra and Henderson, supra are examples of where the Tribunal found an overlap between the issues addressed under the ESA and the analysis that would be performed under the Code. In both those cases, the Tribunal held that the overlap was sufficient to dismiss the Application on the basis of section 45.1. In my view, however, Chen and Henderson do not stand for the proposition that an ESA decision under section 74 will necessarily address the substance of all allegations that could be made under the Code.

46The facts in Chen are quite similar to those of this Application and bear review in some detail. When Ms Chen’s employment was terminated, she made a complaint under the ESA alleging that the employer had dismissed her because she was intending to take a pregnancy leave.

47The ESA officer framed the issue before her as whether or not Ms Chen had been subject to a reprisal prohibited under section 74 of the ESA. The ESA officer found in the applicant’s favour, holding that the applicant’s pregnancy and potential leave were factors in the termination of her employment.

48The employer sought a review of the ESA officer’s decision pursuant to section 116 of the ESA. The OLRB conducted a hearing, following which it overturned the ESA officer’s decision.

49The Tribunal summarized the OLRB’s conclusions as follows:

The Board (...) concluded that the decision to terminate was not tainted in any way by the fact of Ms. Chen’s pregnancy. It is also clear from the decision of the Board that issues of whether her performance at work might have been affected by her pregnancy were considered in the hearing.

For the Board the question boiled down to this:

Ms. Chen obviously feels the decision to terminate her stems from her absences and her pregnancy.Throughout her employment at both Mississauga and Stoney Creek she felt that she was being discriminated against unfairly and her work has not been properly assessed. For Ms Chen to succeed, I must determine that the decision to terminate her was tainted at least, in some small part by her pregnancy.

51In Chen, the Tribunal found that the OLRB (which has the ability to apply and interpret the Code) had appropriately dealt with the substance of the issues raised in the Application. Importantly, in that case, the OLRB’s conclusion were framed more broadly than the ESA officer’s analysis. The OLRB considered not only whether the applicant’s decision to take a leave gave rise to a reprisal under section 74 of the ESA, but more generally, whether the termination was tainted by the applicant’s pregnancy.

52In those circumstances, the OLRB’s determination of Chen’s ESA claim was found to have appropriately dealt with the substance of her Application.

53The reasoning in Chen was adopted more recently in Henderson where the Tribunal again considered whether an application ought to be dismissed based on section 45.1 because its substance had been appropriately dealt with under the ESA.

54In that case, the ESA officer upheld part of the applicant’s ESA claim and .ordered the employer to pay her Christmas bonus and damages for pain and suffering. However, the ESA officer held that the decision to terminate the applicant’s employment was not a reprisal pursuant to section 74 of the ESA. The decision was not reviewed by the OLRB.

55In Henderson, the Tribunal found that the subject-matter of the Application had been appropriately dealt with in the ESA proceeding. It wrote:

It is clear to me that the central issue in both the proceeding before the ESO and in the Application before the Tribunal is whether the applicant was differentially treated by the respondents during the period of November to December 2008 because she was pregnant. It is true that the ESO was considering this issue through the statutory framework of the ESA rather than the Code. However, the ESA’s provisions protecting the right of women to take pregnancy leave are anti-discriminatory provisions that substantially afford the same protections as those provided by the Code. An ESO has considerable authority under the ESA to order remedial actions in cases where the ESA has been violated.

56While I agree with the general principles set out in Henderson, in my view, the protections available under the ESA are not, in every case, substantially the same as those afforded under the Code. While there is significant overlap between the two statutes and while a decision made under the ESA may appropriately deal with the substance of an application, this will not always be the case. Rather, the issue must be assessed on a case-by-case basis, after careful consideration of the subject matter of the specific proceedings.

Analysis and conclusions regarding the subject-matter of the proceedings

57In this case, there is considerable factual overlap between the Application and the ESA complaint, even though the nature of the allegations is somewhat different in each forum.

58In the ESA complaint, the applicant alleges that her job functions changed and that responsibilities were removed from her in reprisal for the exercise of her right to take pregnancy and parental leaves. She alleges that the exercise of this right was also a factor in her dismissal.

59In the Application, she alleges that the change in job functions and responsibilities were discriminatory based on sex and pregnancy. Both the Application and the ESA complaint include allegations that these reprisals included heightened scrutiny, criticism, and the removal of certain privileges.

60I have carefully reviewed the ESA officer’s decision. He determines that the applicant’s exercise of her statutory rights to leaves of absences were not factors in the employer’s behaviour or in its decision to terminate her employment and that the applicant was treated reasonably. However, the ESA decision does not address whether the applicant’s pregnancy (as opposed to her decision to take leaves of absence) was a factor in either her dismissal or the respondent’s treatment of her. In particular, the ESA officer’s decision does not address allegations regarding disparaging remarks about the applicant’s pregnancy.

61As the Tribunal explained in Henderson, discrimination on the basis of pregnancy and reprisal on the basis of the exercise of a right to a leave of absence may be closely related. In most cases, a pregnant women will also exercise her right to a leave of absence and it may be difficult to determine whether any alleged differential treatment is based on the pregnancy and/or on the intended leave of absence.

62In this case, however, the applicant has alleged that she was treated differentially not only upon her return to work from maternal and parental leaves, but during her two pregnancies. In particular, her allegations about a disparaging remark relate specifically to her pregnancy and gender.

63The 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. See Haykin v. Roth, supra. Accordingly, for the Application to be dismissed at this stage of the proceedings, the respondents must show that subject matter of the ESA officer’s decision appropriately deals with the substance of the Application.

64In my view, this will generally involve more than a presumption that conclusions reached under the ESA regarding reprisal for the exercise of a right to a leave of absence subsume the question of discrimination on the basis of sex and pregnancy. While issues of pregnancy and statutory leaves of absences may be closely interrelated, a determination of one does not necessarily flow from the other.

65I cannot accept the respondents’ argument that, in determining the issue under sections 74 and 53 of the ESA, the ESA officer in this case was necessarily determining whether there was discrimination based on the broader grounds of sex. I am mindful of the respondents’ argument that they ought not to have to defend against substantially the same allegations in multiple proceedings. However, in the particular circumstances of this case, while the subject matter of the Application is closely related to the issues addressed in the ESA claim, I find that they differ.

66In this case, unlike in Chen, there is no basis for me to conclude that the decision-maker turned his mind to the issue of whether or not there was differential treatment based on the more general ground of sex, including pregnancy.

67As the respondents point out, the ESA officer reached some factual conclusions regarding the legitimacy of the restructuring and the likelihood the applicant’s position would have been made redundant in any event, given the economic climate. It may be that, because the same factual circumstances give rise to both the ESA claim and the Application, factual conclusions reached by the ESA officer are relevant to some aspects of the Application. However, at this stage of the proceeding, I cannot conclude that the ESA officer’s factual determinations regarding the reorganization and the redundancy of the applicant’s position are such that the ESA decision deals with the substance of the Application. In addition, the ESA officer’s conclusions in this case are not inconsistent with the possibility of a finding discrimination based on sex or pregnancy under the Code.

68Under the Code, the applicant’s sex or pregnancy need only be one factor in the respondent’s decision to terminate her employment. The ESA officer’s conclusion that the reorganization was legitimate and that the applicant would eventually have been dismissed in any event are not necessarily determinative of the allegations of discrimination contained in the Application.

69As I have indicated, in this case, the nature of the allegations raised in each forum is slightly different. It is not clear to me that the Application contains allegations regarding discrimination or reprisal because of the applicant’s exercise of a statutory right to a leave of absence. It may be that, for the purposes of section 45.1 of the Code, the ESA officer’s decision could be found to have appropriately dealt with allegations of this nature. However, because the Application does not appear to contain any such allegations, it is not necessary for me to determine that issue at this stage of the proceedings.

70Finally, I want to briefly address the applicant’s argument that the Tribunal ought to allow the Application to proceed because the ESA officer did not examine, among other things, whether the applicant was reprised against for filing a claim under the Code and whether a male employee received a salary greater than the applicant’s even though he did the same work.

71The Application does not contain allegations relating to either of those issues. There is no contention of reprisal based on the exercise of a Code right, nor is there any allegation regarding unequal pay. This argument is of no assistance to the applicant and, at this stage, there is no basis to conclude that the Application should proceed on those issues.

72Having found that the ESA decision does not address the substance of the allegations contained the Application, it is not necessary for me to consider whether it does so “appropriately”.

73For the above reasons, the respondents’ Request for early dismissal is denied.

74I am not seized of this matter.