Morgan v. Priszm LP, 2011 HRTO 1332

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jenny Morgan

Applicant

-and-

Priszm LP and Gwen Jarema

Respondents

DECISION

Adjudicator: Alison Renton

Date: July 13, 2011

Citation: 2011 HRTO 1332

Indexed as: Morgan v. Priszm LP

APPEARANCES

Jenny Morgan, Applicant ) Self-represented )

Priszm LP and Gwen Jarema, Respondents ) Matt Dewar, Counsel

1The applicant filed an Application on March 30, 2010 with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the grounds of sex and reprisal in employment. She subsequently filed additional material with the Tribunal after her employment was terminated on April 20, 2010 (“the additional material”). The respondents filed a joint Response responding to both the Application and the additional material. The respondents deny the allegations and assert that the applicant’s employment was terminated for a number of performance issues.

FACTUAL BACKGROUND

2The applicant began working for the corporate respondent at one of its Kentucky Fried Chicken stores in 2005 when she was 15 years of age. In 2007 she was promoted to the position of part time assistant manager, a position she held until her termination in April 2010.

3In August 2009, she became concerned that two recently appointed male assistant managers were receiving a higher wage than she was and raised concerns about being treated unequally on the basis of sex (gender) with her area manager, Gwen Jarema, who is the personal respondent. The applicant was not satisfied with the reasoning she was provided with about the wage differential and raised her concerns with other members of management.

4The applicant alleges that she was told by human resources that she was treated unfairly and her compensation would be adjusted when annual merit increases were given out in 2010. She did not like the adjustment coming in the guise of a raise rather than an equality issue, but waited for the increase. The corporate respondent subsequently announced that no salary increases would be issued for managers and she was told that her wage would not be increased.

5Upset with this information, the applicant contacted a male manager of another store to express her dissatisfaction about the wage issue and other issues. During that telephone conversation the applicant alleges the manager told her that his assistant manager, a female, received the same wage as the applicant.

6Subsequent to that call, the area manager called the applicant about her conversation with the male manager, alleged the applicant disclosed personal information about other employees, and suspended her pending investigation. The applicant alleges that this suspension constitutes discrimination on the basis of sex (gender) because the male manager who disclosed the personal information about his female assistant manager was not disciplined.

7In the additional information, the applicant provided details of the respondent’s investigation into its claims that she revealed personal information about another employee and a final warning that she received with which she disagreed. Her employment with the corporate respondent was terminated on April 20, 2010.

8The respondents filed a joint Response denying the allegations. They agree that the applicant raised concerns about her wages, but they could not raise her wages in light of the economic conditions of the corporate respondent at that time. They denied that any wage differential was a result of gender.

9According to the respondents, when the applicant did not receive a wage increase, she began to allege that her wage rate was a function of her gender and she engaged in a “campaign to alter her wages”. When she failed to achieve her desired goal of a wage increase, the respondents allege that the applicant’s behaviour deteriorated to the point that her continued employment became untenable. Amongst other things, she disclosed confidential pay information of other employees, was vocal in discouraging candidates from applying for positions with the corporate respondent, made disparaging comments about the corporate respondent and generated negativity within the workplace. The respondents allege that the applicant’s quest for a pay raise became disruptive to the operations of the corporate respondent as a result of her “incessant barrage of communications to management”. As a result of concerns of disclosing personal information, the applicant was suspended and an investigation into her conduct was conducted. During the investigation, the corporate respondent determined that she was not candid in accepting responsibility for her behaviour and despite a written warning being issued to her, her employment was terminated due to an irretrievable breakdown in the employment relationship.

10Subsequent to filing the joint Response, the respondents filed a Request for Order During Proceedings (“RFOP”) dated September 8, 2010 requesting that the Application be dismissed pursuant to section 45.1 of the Code because a proceeding under the ESA had already determined the issues raised in the Application. The applicant filed a Reply, but did not file a Response to the RFOP and the time for doing so has elapsed.

11The Tribunal issued an Interim Decision (2010 HRTO 1992), stating that it would schedule a conference call hearing to consider whether the Application should be dismissed as a result of the ESA proceedings. The hearing was held on January 28, 2011 and both parties participated.

The Employment Standards Act, 2000 claim

12On May 24, 2010, the applicant filed a claim under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“the ESA”) with respect to vacation pay on the days she was suspended pursuant to sections 35.2 and 36; termination and severance of employment pursuant to Part XV; reprisal, section 74; and equal pay for equal work, section 42. An officer was appointed under the ESA to determine whether or not the ESA was violated (“the ESO”).

13The ESO issued a decision dismissing the claim on all the issues. The ESO determined:

• The claim for vacation pay was premature because the corporate respondent paid out vacation pay on an accrued basis and the pay, if owing, was not due until later in the year;

• The claim for termination pay and severance pay was not substantiated because the applicant’s behaviour, including disclosing confidential salary information, constituted wilful behaviour or disobedience, disentitling her from termination and severance pay under the ESA. Notwithstanding this determination, the corporate respondent was paying the applicant termination and severance pay amounts;

• The claim for reprisal under section 74(2) was denied because the applicant’s concerns about pay rates appeared to be a general dissatisfaction with how and when increases were being addressed, or not, and not related to gender disparity;

• The claim for equal pay for equal work was denied because the corporate respondent was able to submit evidence showing that the reason for the differential in pay between the applicant and similarly situated male employees was not due to gender.

The Conference Call Hearing

14The respondents submit that there is a factual overlap in the subject matter between the Application and the ESA proceeding; namely, the applicant’s treatment before her termination, whether her employment was terminated for just cause, and whether discriminatory factors played a role in the decision to terminate.

15The respondents note that the ESO specifically refers to the human rights issues and while addressing them in her decision, rejects them. The decision was a final decision, which was not appealed by the applicant to the Ontario Labour Relations Board.

16The respondents submit that to allow the Application to continue would amount to res judicata, issue estoppel, or an abuse of process, and would constitute “forum shopping” with the potential for different decisions to be reached by different administrative bodies. It submits that the respondents should not be subjected to the time and expense of multiple proceedings where the same questions have been decided, where the decision is final and the parties are the same.

17The applicant submits that having worked for the corporate respondent her entire career, she had no experience in bringing forward complaints and that she filed her ESA complaint in order to get her statutory entitlements of vacation, termination and severance pay. She stated that the official with whom she spoke at the Ministry of Labour told her that human rights issues were not their expertise.

18The applicant submits that she provided to the ESO all of her allegations so the ESO would know the whole situation and submits that the ESO issued a decision based upon the “whole story”. Had she been told that her Application could be “hurt” by her ESA complaint, the applicant states that she would not have filed her ESA complaint. The applicant asserts that she did not mean to abuse any process.

ANALYSIS

19Section 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.

20Section 45.1 has generally been considered in two parts: (1) was there another “proceeding”; and (2) if so, did it “appropriately deal with” the “substance of the Application”.

21In other decisions, the Tribunal has held that a complaint determined by an ESO constitutes a “proceeding” within the meaning of the Code. (See Vonella v. Blake Jarrett, 2010 HRTO 113; and Henderson v. Nutech Fire Protection, 2010 HRTO 2153.) Following the Tribunal’s jurisprudence, I am satisfied that the complaint process before the ESO constituted a “proceeding” under the Code within the meaning of section 45.1. In fact, the applicant did not argue that it was not.

22The Tribunal has stated that the 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, 2009 HRTO 2017 at para. 32; Vonella v. Blake Jarrett, 2011 HRTO 113 at para. 63.

23It is settled law that anti-discriminatory legislation is subject to the concurrent and overlapping jurisdiction of an array of administrative decision-makers: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513. The purpose of section 45.1 of the Code is to avoid duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.

24As stated in Campbell v. Toronto District School Board, 2008 HRTO 62, at paras. 29 to 31:

Before turning to an examination of the legal principles, it is useful to set out some guiding principles that will inform the following discussion. First, the Code is an important public policy statute, protecting rights which are quasi-constitutional in nature. Those rights would be meaningless without access to a mechanism for their enforcement – the right to pursue a complaint under the Code should therefore not be denied absent a compelling reason. Second, responsibility for the administration of justice and the enforcement of legal rights in Ontario is spread across a panoply of courts and tribunals. Some of these courts and tribunals have overlapping jurisdiction, and may have considerable expertise in particular areas of law. The Tribunal must undertake its own work with an appreciation of its role in the broader scheme of administrative justice, providing leadership in the interpretation and application of the Code while respecting the legitimacy of decision-making by other tribunals within their own mandates.

Further, both public and private interests require finality in litigation. As expressed by the Supreme Court of Canada in Danyluk:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry… An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. (para. 18).

The coherence of the administration of justice as well as the need for finality in litigation informs another guiding principle here: that the Tribunal does not act as an appellate court from a decision of another tribunal. In common law, this principle has been expressed as the rule against ‘collateral attack’, described by the Supreme Court as another aspect (in addition to res judicata) of the judicial policy favouring finality:

…i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it… These rules were initially developed in the context of prior court proceedings. They have since been extended, with some necessary modifications, to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals. In that context the more specific objective is to balance fairness to the parties with the protection of the administrative decision-making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided. (Danyluk, para. 20-21).

25As expressed in Campbell, at para. 38, the term “abuse of process” is a legal doctrine which focuses is on the integrity and coherence of the adjudicative process and not on the motive of the applicant and whether he or she was driven by malice or bad faith.

26The Tribunal has recognized that certain sections of the ESA overlap with the Code and that a determination between the two statutes will be based upon the facts specific to that Application. (See Vonella, at paras. 38 and 43.) The Tribunal has also noted that an ESO can award a number of remedies. (See Chen v. Harris Rebar, 2009 HRTO 227 at para. 13.)

27The Tribunal has issued a number of decisions in which it has considered whether an officer appointed under the ESA has “appropriately dealt with the substance of the application”. In some, the Tribunal has dismissed the application finding that an ESO had appropriately dealt with the substance of the application. See, for example, Chen v. Harris Rebar, 2009 HRTO 227; Henderson v. Nutech Fire Protection, 2010 HRTO 2153. In others, the Tribunal has determined that ESO’s decision did not address the substance of the allegations contained in the application. See, for example, Vonella v. Blake Jarrett, 2011 HRTO 113.

28The words in section 45.1 “appropriately dealt with the substance of the application” have specific meanings. In considering the meaning of section 45.1 I have found human rights decisions from the British Columbia (“BC”) Courts to be of assistance in interpreting what these words mean.

29Section 27(1)(f) of the Human Rights Code, R.S.B.C. 1996, c. 210 (“the BC Code”) contains language that is very similar to section 45.1 of the Code. Section 27(1)(f) provides:

27(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:

(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding.

30In Workers’ Compensation Board v. British Columbia (Human Rights Tribunal), 2010 BCCA 77 (leave to appeal to SCC allowed 2010 CanLII 37856 (SCC)), the BC Court of Appeal (“BCCA”) found that the BC Human Rights Tribunal could hear a human rights complaint that alleged that the chronic-pain policy of the BC Workers’ Compensation Board (“WCB”) was discriminatory, when the Review Division of the Workers’ Compensation Board had determined that the policy was not discriminatory.

31In allowing the appeal, the BCCA noted at para 29 that the BC Legislature, with the combined effect of the language of section 27(1)(f) of the BC Code, as well as its deferral language:

…. has conferred on the Tribunal jurisdiction to adjudicate a human rights complaint even though the same issue is being raised before, or has been dealt with by, another body. For example, if a complaint is filed with both the Tribunal and another body then, by virtue of s. 25(2) [the deferral section], the Tribunal has the discretion to defer dealing with it until the outcome of the other proceeding is known. Such a deferral amounts to no more than a voluntary suspension of the Tribunal’s jurisdiction. Once the other body has dealt with the matter, the Tribunal has the authority, by virtue or s. 27(1)(f), to either exercise or not exercise its jurisdiction. Whether the Tribunal proceeds in any given case is a matter within its discretion. In other words, the legislative scheme specifically recognizes that the Tribunal can adjudicate a complaint notwithstanding that another body has already dealt with the substance of the same matter. There is no automatic loss of jurisdiction.

The fact that a body such as the Review Division has dealt with a human rights issue over which the Tribunal has jurisdiction does not have the effect of nullifying that jurisdiction…..In the case at bar, the issue is not whether the Tribunal has authority to inquire into whether the WCB’s chronic pain policy violates the [BC] Code but whether it should exercise that authority. That question is determined under s. 27(1)(f).

32At para. 32, the BCCA cited with approval a BC Superior Court decision called Hines v. Canpar Industries Ltd., 2006 BCSC 800. In Hines, the BC Superior Court determined that the words “appropriately dealt with” in section 27(1)(f) did not require the BC Tribunal to review the correctness of the decision from the other proceeding, but rather review if the other proceeding substantively addressed the issues from the Tribunal’s perspective. At para. 25 of Hines, the Court observed:

I do not think there is any doubt that s. 27(1)(f) involves an exercise of discretion. In order to determine whether the substance of a complaint has been appropriately dealt with in another proceeding, the Tribunal is required to compare the nature of the matters dealt with in those proceedings with the concerns that might otherwise engage the Tribunal to determine if the issues were suitably addressed. This does not amount to a review of the correctness of the decision but requires a determination as to whether the other proceeding substantively addressed the issues from the perspective of the Tribunal, informed by the policy considerations within its specialized knowledge in administering the Code.

33Further, the BC Supreme Court determined, in HMTQ v. Matuszewski, 2008 BCSC 915, that the common law doctrine of issue estoppel is built into the discretionary exercise of section 27(1)(f) of the BC Code. The Court stated at paras. 31 to 32:

In my opinion, the common law doctrine of issue estoppel does not provide an independent ground upon which to deprive a statutory administrative tribunal of jurisdiction. Rather, the principles that underlie the doctrine, together with the principles that underlie the concept of mootness and abuse of process, are factors of primary importance that must be taken into account when exercising discretion under s. 27(1)(f) of the Human Rights Code to proceed, or to refrain from proceeding, with the hearing of a complaint.

This result flows from the fact that situations of concurrent jurisdiction are contemplated by the Code, the Tribunal is empowered to defer consideration of a complaint in the event some other proceeding is more appropriate, and the Tribunal is required to consider whether the substance of the complaint has been … appropriately dealt with in the other proceeding.

34Section 45.1 of the Code is a discretionary remedy and the Tribunal, once the issue is raised by a party, is required is consider whether it will exercise its discretion to dismiss all or part of an Application.

35In this case, I find that the ESO substantively addressed the issues that have been raised in the Application. The ESO considered whether the applicant’s pay, suspension and termination were as a result of her raising concerns about the alleged inequal wages of her male counterparts. Those are the same issues as those raised in the Application and, accordingly, I find that the substance of the Application was addressed by the ESO.

36I also find that the substance of the Application was “appropriately dealt with” by the ESO. The ESO considered whether discrimination was at issue in the ESA complaint. The ESO’s decision reflects that allegations of discrimination with respect to the Code and the ESA were made by the applicant when the ESO sets out the facts relevant for her reprisal determination. I am not concluding whether or not the ESO came to the correct result in making her decision under the ESA, but I am satisfied that she considered the discriminatory allegations in rendering her conclusions.

37As the ESA proceeding appropriately dealt with the substance of the Application, I find it appropriate to exercise my discretion under section 45.1 and to dismiss the Application.