Rebecca Scharien v. Holman Exhibits, 2011 HRTO 1329

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rebecca Scharien Applicant

-and-

Holman Exhibits Respondents

DECISION

Adjudicator: Michelle Flaherty Date: July 13, 2011 Citation: 2011 HRTO 1329 Indexed as: Scharien v. Holman Exhibits

1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment because of sex. In essence, the applicant alleges that the respondent dismissed her because she was pregnant.

2The respondent has filed a Response denying the allegations of discrimination. On April 4, 2011, the respondent filed materials seeking the early dismissal of the Application pursuant to section 45.1 of the Code because its subject matter has been appropriately dealt with in a proceeding under the Employment Standards Act, 2000 S.O. 2000, c. 41 ("ESA").

3On April 7, 2011, the Tribunal cancelled the mediation scheduled in this matter and issued a letter directing the parties to file written submissions on the section 45.1 issue in accordance with specific timelines. The Tribunal's letter also stated that if either party wished to make oral submissions, they should advise the Tribunal in writing within 20 days.

4The applicant did not file submissions with respect to the section 45.1 issue, nor did she ask the Tribunal for an opportunity to make oral submissions. Rather, she asked the Tribunal to defer consideration of the Application until the ESA matter had been dealt with.

5On May 5, 2011, the respondent filed submissions stating that the ESA matter had concluded. The respondent filed a copy of the ESA decision, in which an employment standards officer found that the respondent had dismissed the applicant because she was pregnant and intended to take pregnancy leave. The respondent was ordered to pay the applicant $30,576.94. The parties agree that this sum has been paid to the applicant. Neither party has sought to review the ESA decision and the time for doing so has expired.

6On May 12, 2011, the Tribunal issued a Case Assessment Direction directing the applicant to provide submissions regarding the section 45.1 issue.

7On May 19, 2011, the applicant wrote to the Tribunal and the respondent. She requested that the Tribunal dismiss the Application, pursuant to section 45.1, as the ESA matter had fully dealt with the subject matter of the Application.

8On May 19, 2011, the Registrar wrote to the parties and advised that, unless advised otherwise by the Applicant, it intended to treat the Application as withdrawn.

9On July 6, 2011, the respondent filed submissions with the Tribunal and provided a copy to the applicant. In these submissions, the respondent argues that it is appropriate to dismiss the Application rather than treat it as a withdrawal. The respondent points out that the applicant consents to a dismissal in her May 19, 2011 letter. She has not, in fact, sought to withdraw the Application.

10The applicant has not responded to these submissions.

DECISION

11The applicant has not sought to withdraw the Application. She has asked that it be dismissed. In my view, in the circumstances, it is appropriate to consider whether or not to dismiss the Application.

12I am satisfied that the ESA proceeding appropriately dealt with the subject matter of the Application in the circumstances for the purposes of section 45.1 of the Code.

13The 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.

14The 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.

15The central issue in both the proceeding under the ESA and in the Application before the Tribunal is whether the applicant was differentially treated because she was pregnant. In the circumstances of this case, I am satisfied that the ESA matter has addressed that issue and, in so doing, has appropriately dealt with the substance of the Application.

16The Application is dismissed.