Menard v. Lifeline Delivery Services Inc., 2011 HRTO 1460

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Becky Menard Applicant

-and-

Lifeline Delivery Services Inc. and Russ Irwin Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: August 3, 2011

Citation: 2011 HRTO 1460

Indexed as: Menard v. Lifeline Delivery Services Inc.

ORAL SUBMISSIONS

Becky Menard, Applicant ) Self-represented

Lifelong Delivery Services Inc. ) Russ Irwin on behalf of self and Russ Irwin, Respondents ) Corporate Respondent

1On February 12, 2010, the 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. She alleges that the respondents failed to accommodate her special needs arising from her pregnancy while she worked, and that her pregnancy was a factor in the termination of her employment. The purpose of this Interim Decision is to address whether the Application should be dismissed pursuant to section 45.1 of the Code pursuant to a Request from the respondents who argue that another proceeding has appropriately dealt with the subject-matter of the Application, or whether it should be dismissed as an abuse of process given a settlement in the context of that other proceeding.

BACKGROUND

2On June 12, 2009, the applicant filed an Employment Standards Act, 2000 (“ESA”) Claim, alleging a breach of s.74 of the ESA. The applicant claimed that the termination of her employment was reprisal for exercising her statutory right to pregnancy and parental leave. On January 7, 2010, an ESA officer found in the applicant’s favour, but the respondents applied to the Ontario Labour Relations Board (the “OLRB”) for a review of that decision. Prior to a hearing before the OLRB, the parties settled, resolving all issues in the respondents’ application for review of the officer’s decision on the ESA Claim.

3The parties agree that the ESA Claim and the officer’s decision granting it did not involve any issue other than the termination of the applicant’s employment while on pregnancy/parental leave. The preamble to the Settlement Agreement states: “In the matter of an application for review under section 116 of the Employment Standards Act, 2000, S.O. 2000, c.41.” The release in the Settlement Agreement states, “The parties agree that the settlement resolves all issues in this application,” and it does not refer to any other issues or disputes between the parties.

4In a hearing before the Tribunal by way of conference call on July 22, 2011, the respondent argued that it would be an abuse of process for the Application to proceed given that the allegation of discrimination for the employment termination was resolved in the settlement of the ESA claim. The applicant conceded that her Application should be dismissed with respect to the termination of her employement because the ESA Claim and resulting settlement dealt with it. Accordingly, I dismiss the part of the Application which alleges that the termination was discriminatory.

5The applicant argued, however, that a part of her Application was not about the terimination, and is therefore unaffected by the ESA proceeding or the ESA settlement.

REASONS

6In section 8 of the Application, which requires a description of each event, the applicant wrote:

10/2008 – I notified Mr. Russ Irwin, the owner of Lifeline Delivery Services Inc. that I was pregnant.

10/2008 to 12/2008 – I continued my employment with Lifeline Delivery Services. My job required me to do continuous lifting and carrying. I mentioned to Mr. Irwin numerous times that it was getting difficult for me to lift and carry heavier parcels and that it was causing me pain. He repeatedly told me that pregnant women can still workout and bench press up to 100 lbs. and that I should have no problem doing my job. There was a receptionist position available and at no time did the owner offer this positin or any postion that was a lighter duty to me. Continuously throughout this time I did not feel they were willing to accommodate my pregnancy in any way.

12/2008 – My doctor advised that I should not be doing the lifting and carrying as it was causing me pain and cramping. When I told her that I had no choice, she advised me that it would be best to go on sick leave until my baby was born. I gave my employer the doctor’s note (copy can be forwarded) and 4 weeks’ notice for my sick leave. I actually ended up staying on an extra week when my Supervisor asked if I could help out over the Christmas Holidays.

7The respondents argued that the applicant did not allude to the above allegations elsewhere in the Application, but these allegations of a failure to accommodate the applicant while she was working are clearly articulated in the Application, and I find that they are therefore issues before the Tribunal.

8The respondents argued that the issue of whether they accommodated the applicant’s special needs arising from her pregnancy were discussed during the mediation of the review of the ESA officer’s decision at the OLRB. They argued that the amount they agreed to pay the applicant pursuant to the ESA settlement took into consideration her position that they made her lift heavy objects and her allegation that they could have accommodated her. The respondents argue that it would be an abuse of the Tribunal’s process to allow the Application to continue given that all the issues it raises were dealt with by the ESA settlement.

9The applicant took the position that the ESA settlement did not involve any recognition of the respondents’ alleged failure to accommodate her, and stated that the parties were in separate rooms, communicating through a third party. In these disputed circumstances, I must turn to the language in the release paragraph of the ESA settlement itself.

10As noted above, the release paragraph states that only the issues in the review of the ESA officer’s decision are resolved by the ESA settlement. The ESA claim and the resulting ESA officer’s decision did not raise the issue of whether the respondents accommodated the applicant prior to the termination of her employment. They dealt exclusively with the termination of the applicant’s employment while on pregnancy/parental leave. The ESA settlement between the parties resolved only the issues in the respondents’ application for review of the officer’s decision at the OLRB; consequently, I cannot find that the allegations of discrimination with respect to the respondents’ treatment of the applicant while she worked with them were issues dealt with in a proceeding or in a settlement. I am not prepared to dismiss under s.45.1 of the Code or as an abuse of the Tribunal’s process that part of the Application which deals with allegations of discrimination prior to the applicant beginning her leave and prior to the terimination of her employment.

ORDER

11For the above reasons, the respondents’ Request for early dismissal is allowed only with respect to the allegation that the respondents’ termination of her employment was discriminatory. I deny the request to dismiss with respect to the part of the Application that deals with the applicant’s allegations that the respondents failed to accommodate her special needs arising from her pregnancy while she performed her duties in the workplace. The Registrar will proceed to schedule a date for those allegations to be heard.

12I am not seized of this matter.