HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shanan Butkovic
Applicant
-and-
GRB KelWhitby Inc.
Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Butkovic v. GRB KelWhitby Inc.
WRITTEN SUBMISSIONS
Shanan Butkovic, Applicant
No submissions
GRB KelWhitby Inc., Respondent
Vito Romita, Representative
Introduction
1This is an Application filed February 17, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of sex and reprisal.
1This Interim Decision addresses the issue of whether the Application should be deferred pending the outcome of a claim filed by the applicant under the Employment Standards Act, 2000, S.O. 2000, c.41 as amended (the "ESA claim").
2The Application alleges discrimination in employment on the grounds of sex and pregnancy. In its Response, the respondent asked that the Application be deferred until the ESA claim had been disposed of.
3The applicant alleges that on December 18, 2011, she was assigned a duty which was difficult for her to perform due to her pregnancy and that when she indicated that she would have difficulty, she was told not to come back for future shifts. She alleges that her employment was terminated the next day. She also makes reference to "incidents of harassment" prior to her first maternity leave and alleges that she experienced a reduction in hours, a demotion to kitchen work and that comments were made that her uniform was too big and would have to be replaced. She does not provide particulars, including dates, regarding these allegations. By way of remedy, she seeks financial compensation for hours she did not work prior to her maternity leave, "loss of maternity wages due to lack of hours…punitive damages, defamation of character, slander, 2 years of harassment, emotional and mental stress." She also seeks an order for training for the respondent.
4The respondent denies discrimination contrary to the Code. With respect to the termination of the applicant's employment, it alleges that she was dismissed for a "verbal and physical assault on the manager on duty Dec. 18/11…compiled with past incidents of similar nature."
5The respondent also seeks deferral of this Application, as the applicant is also seeking "termination pay" through the Ministry of Labour. The respondent provided a copy of a March 7, 2012 letter from an Employment Standards Officer at the Ministry of Labour, stating that an investigation has been completed and that no contravention had been found and no Orders for termination pay would be issued. In the Reasons for Decision attached to the March 7, 2012 letter, the Employment Standards Officer found that the employer had "just cause" for terminating the applicant's employment. Copies of documentation submitted to the Tribunal by the respondent also indicate that the applicant has objected to the Employment Standards Officer decision and that a Board Officer has been appointed to assist the parties, including working with them to endeavour to reach a settlement. If no settlement results, the documentation indicates that the Registrar of the Board may fix hearing days. A copy of correspondence from the Board Officer indicates that a meeting was to be held in order to conduct settlement discussions on June 22, 2012.
6The Tribunal wrote to the applicant on May 31, 2012, providing her with the respondent's Response and advising her that by June 14, 2012, she must file a Reply, including complete submissions in response to the respondent's request to defer. The applicant has not provided a Reply and/or submissions regarding the respondent's request to defer consideration of this Application and the time for doing so has passed.
Deferral considerations
7The Tribunal has consistently found that the fact that an applicant has started a different process arising out of the same circumstances that gave rise to the Application is not in and of itself a reason to defer dealing with an Application.
8In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated at para. 7:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
9The extent to which the Employment Standards Officer may have the authority to deal with the alleged human rights issues is not clear. The ESA does not expressly incorporate the Code or give decision makers authority to resolve human rights issues. However, the Supreme Court of Canada has found that statutory tribunals that are empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the Code to a matter properly in front of them (Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14). It is not clear if this applies to a decision of an Employment Standards Officer although it would clearly apply to the Ontario Labour Relations Board (OLRB) which hears appeals under the ESA from decisions of an Employment Standards Officer.
10In Lutgens v. Oxford University Press, 2009 HRTO 790, and Matechuck v. OLG at Thousand Islands, 2009 HRTO 324, the Tribunal deferred Applications because of an ESA proceeding alleging a contravention of the ESA on the grounds of pregnancy. In both of those cases, the Employment Standards Officer had made findings that were under appeal to the OLRB. The fact that the ESA proceeding was well under way with a pending appeal appears to have been a factor in those cases.
11A reason not to defer an Application is that deferral will likely postpone the hearing of the Application by the Tribunal. In general, it is preferable to adjudicate cases close in time to the events in question and applicants and respondents are entitled to expect the Tribunal to deal with Applications in a timely fashion. The delay in adjudicating the Application may be longer if the other proceeding is in the early stages.
12If a person has commenced another proceeding that raises the same human rights issues, it may be appropriate for the Tribunal to defer the Application until the other proceeding is complete, even if the other proceeding is still in the early stages.
13First, it may not be fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Secondly, there is a potential for inconsistent findings in the two proceedings. Inconsistent findings by two different adjudicative bodies may occur because the cases are presented differently or because different statutes or rules may apply. However, it is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues.
14While the applicant has referred to other unparticularized allegations in her Application, the main body of her narrative relates to the allegation that her employment was terminated for discriminatory reasons in violation of the Code. In this case, therefore, much of the circumstances giving rise to the Application and the ESA claim are the same. The ESA application addresses the question of whether the respondent had "just cause" for termination of the applicant's employment. In both her ESA claim and in her Application to the Tribunal, she alleges that her termination was due to the fact that she did not want to perform a particular duty due to her pregnancy. If the appeal of the ESA claim and the Application proceed at the same time, the parties will be required to concurrently address substantially the same issue and allegations of fact in two different forums. There is a potential for inconsistent findings.
15The remedy sought by the applicant under the ESA is "termination pay." The remedies the applicant seeks at the Tribunal are more extensive, though some portion of the remedy she seeks at the Tribunal overlaps with the period for which she seeks "termination pay" under the ESA.
16In light of these considerations, I am satisfied that the Application should be deferred until the ESA proceeding has been concluded or abandoned. The Tribunal's Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.
17I am not seized of this matter.
Dated at Toronto, this 20th day of July, 2012.
Signed by
Maureen Doyle
Vice-chair