Kemp v. Ontario Conservatory of Music Inc., 2011 HRTO 1799

Human Rights Tribunal of Ontario

B E T W E E N:

Lorraine Kemp

Applicant

-and-

Ontario Conservatory of Music Inc.

Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: October 4, 2011 Citation: 2011 HRTO 1799 Indexed as: Kemp v. Ontario Conservatory of Music Inc.

1This Application, which was filed on April 20, 2011 under, the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in employment on the basis of sex and family status. This Interim Decision addresses the respondent’s request to defer and the applicant’s request to amend the Application.

BACKGROUND

2The respondent, the Ontario Conservatory of Music Inc., arranges and conducts music lessons in various locations across Ontario as well as arranging the sales of musical instruments to its students and to the public. The respondent is also a franchisor with a number of franchisees arranging and conducting music lessons and selling music instruments in studios in other locations in Ontario. For the purposes of this Interim Decision it is significant to note that in addition to being an employee of the respondent the applicant is a shareholder in two of the respondent’s franchises. Since 2005 she has owned a 33% interest in Ontario Music Studios Guelph Limited and since 2008 a 25% interest in 2025730 Ontario Inc which is a studio located in Woodbridge Ontario. It appears that the majority shareholders for both franchises are the respondent’s president, Frank Zolnai Jr., and his father.

3The applicant was the respondent’s Corporate Instrument Sales Manager before she announced on July 7, 2010 that she was pregnant and that she intended to take an extended pregnancy leave. The Application alleges that the respondent’s president, Frank Zolnai, was upset about this announced pregnancy leave and the disruption it might cause for the respondent and consequently took a number of measures in relation to the applicant’s work responsibilities including demoting the applicant and reducing her pay. The Application alleges that the respondent’s actions were intended to harass and belittle her.

4In its Response the respondent denies that it acted in a discriminatory manner and submits that the decisions it made in relation to the applicant’s job responsibilities were based on the applicant’s poor work performance and/or the respondent’s business needs.

REQUEST TO DEFER

5The respondent also requests in its Response that the application be deferred until the determination of two court proceedings the respondent submits are related to the facts of the application. The first is a court action commenced by the Ontario Music Studios (Guelph) Limited, the franchise located in Guelph, against the applicant (the “Guelph Studio action”). The second is a court action applicant has commenced against 2025730 Ontario, Inc., the franchise located in Woodbridge (the “Woodbridge Studio action”). The respondent provides copies of the Statement of Claim for the Guelph Studio action, a draft of the applicant’s Notice of Application in the Woodbridge Studio action and sworn affidavits by the applicant made in relation to each of the actions. While it is not entirely clear when these actions were formally commenced it appears the Guelph Studio Action predates the filing of the Application, and the Woodbridge Studio Action postdates the Application.

6In her Reply to the Response the applicant opposes the request to defer arguing that the court actions are in relation to her role as an officer, director and shareholder and as an oppressed shareholder and that these matters have nothing to do with claiming her rights under the Code as an employee with a different corporate entity. The applicant provides copies of her Statement of Defence and Counterclaim for the Guelph Studio action and her amended Application Record for the Woodbridge Studio action.

7The Tribunal may defer consideration of an application on such terms as it may determine and on its own initiative. See Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. In considering whether to defer an application the Tribunal will look at the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding and whether it would be fair to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

8I have reviewed all the documents related to the two court actions that are before me as well as the Application, Response and Reply. I am of the view that the Application should not be deferred until such time as the court actions are resolved. The two court actions do not directly relate to the applicant’s employment with the respondent and whether the respondent treated the applicant in a discriminatory manner. Rather they involve civil actions between shareholders of other legal entities. While it is true that both the applicant and Mr. Zolnai Jr. are involved in these other civil proceedings and that Ontario Music Studios Guelph Limited and 2025730 Ontario Inc do have a legal relationship with the respondent, I am satisfied that the issue of how the respondent treated the applicant as an employee will not be the subject of these other proceedings. I do not see the possibility of inconsistent decisions on facts or law given the subject matter of these proceedings. I am prepared to make this decision even given that the applicant does refer in her pleadings in both civil actions to her alleged discriminatory treatment. I am satisfied there is no indication that the applicant is seeking a determination in these other proceedings as to whether the respondent discriminated against her and that the civil actions are solely about the applicant’s position as a shareholder (and officer and director) of two other legal entities.

REQUEST TO AMEND THE APPLICATION

9On August 5, 2011 the applicant filed a Request for an Order During Proceedings (“RFOP”) to amend the Application. The RFOP states that the request is being made in order to correct typographical, clerical and mathematical errors made in the original Application.

10On August 5, 2011 the respondent wrote to the Tribunal to request an extension to file a response to the RFOP because of vacation plans. The respondent added that based on the description of the proposed amendments the respondent may take no position but would still like the extension just in case the respondent determined that it wished to respond to any of the proposed amendments.

11The Tribunal granted the respondent’s request for an extension of time until August 26, 2011. The Tribunal has not received a response to the RFOP from the respondent as of the date of this Interim Decision.

12Given the nature of the request to amend and the fact that the respondent has not raised any objections the applicant’s request to amend the Application is granted.

13The Application also proceeds in light of my decision not to grant the request to defer.

DECISION

14The Tribunal orders as follows:

a) the respondent’s request to defer this proceeding is denied; and

b) the applicant’s request to amend the Application is granted.

15I am not seized of this matter.