Dawn Millar v. Power Tax Corporation, 2012 HRTO 1578

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dawn Millar Applicant

-and-

Power Tax Corporation, DioGuardi Tax Law, DioGuardi Criminal Tax LLP and DioGuardi Tax Services Respondents

INTERIM DECISION

Adjudicator: David A. Wright Date: August 15, 2012 Citation: 2012 HRTO 1578 Indexed as: Millar v. Power Tax Corporation

WRITTEN SUBMISSIONS

Dawn Millar, Applicant Denise Sayer, Counsel

Power Tax Corporation, Respondent Laura Cassiani, Counsel

1This is an Application filed 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. The applicant alleges that she was dismissed from employment at least in part because she took pregnancy and parental leave. Power Tax Corporation (“Power Tax”), her former employer, says her position of Manager, Tax Resolutions was eliminated and that the pregnancy played no part in the decision. The applicant alleges that it and the other respondents are closely related and conduct business as one entity. She suggests she did work for all of them and all are liable under the Code.

2After filing its Response, Power Tax commenced an Application in the Superior Court of Justice under Rule 14 of the Rules of Civil Procedure seeking declarations about the applicant’s employment. It then filed a Request that this Application be deferred pending the resolution of the Superior Court Application. The applicant filed a Request that she be permitted to amend her Application to add the allegation that the filing of the Superior Court Application was a reprisal.

3For the reasons that follow, the Tribunal denies the Request to Defer by Power Tax. With regard to the proposed amendment to the Application, it appears to me that this allegation may be precluded by the doctrine of absolute privilege. I am loathe to delay this Application by seeking submissions on this issue now, given that both parties have agreed to mediate. In the circumstances, the Application will be scheduled for mediation and, if necessary, the parties can make submissions on whether absolute privilege should bar the requested amendment after mediation.

DEFERRAL

4The Application with the Tribunal was filed on February 23, 2012, and delivered to the respondents on March 7, 2012. Responses were filed in early April. The respondents other than Power Tax requested a summary hearing in their response, which was denied by letter dated May 16, 2012.

5On May 10, 2012, Power Tax commenced an Application in the Superior Court of Justice seeking the following relief:

(a) a determination of rights that depend on the interpretation of a contract pursuant to Rule 14.05(3)(d) of the Rules of Civil Procedure;

(b) a determination of rights that depend on the interpretation of a statute pursuant to Rule 14.05(3)(d) of the Rules of Civil Procedure;

(c) a determination and declaration by this Honourable Court that the employment agreement entered into between the Applicant Power Tax Corporation and the Respondent Dawn Millar dated February 22, 2009, as amended by the addendum dated May 26, 2010 (collectively the "Employment Agreement") is valid and binding on the parties;

(d) a determination and declaration by this Honourable Court that the Applicant Power Tax Corporation was the sole employer of the Respondent Dawn Millar, in fact and in law, under the Employment Agreement and/or pursuant to section 4 of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended;

(e) a determination and declaration by this Honourable Court that the Respondents DioGuardi Tax Law, 4536410 Ontario Inc. carrying on business as DioGuardi Tax Services and/or DioGuardi Criminal Tax LLP, or any of them, were not the employer of the Respondent Dawn Millar nor a common employer pursuant to section 4 of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended, or otherwise;

(f) a determination and declaration by this Honourable Court that the employment of the Respondent Dawn Millar was properly terminated, on or about January 12, 2012, for valid business reasons, in accordance with the terms and provisions of the Employment Agreement;

(g) a determination and declaration by this Honourable Court that the position formerly held by the Respondent Dawn Millar had been eliminated prior to her expected return from maternity leave on or about January 16, 2012;

(h) a determination and declaration by this Honourable Court that there was no comparable position to which the Respondent Dawn Millar could have been reinstated or appointed on her return from maternity leave;

(i) a determination and declaration that, in terminating the employment of the Respondent Dawn Millar on or about January 12, 2012, the Applicant Power Tax Corporation did not contravene section 53 of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended;

(j) a determination and declaration that under the Employment Agreement, it was open to the Applicant Power Tax Corporation to terminate the employment of the Respondent Dawn Millar at any time subject to compliance with the relevant terms and provisions thereof;

(k) its costs of this Application on a partial indemnity basis, or as this Honourable Court may otherwise determine appropriate, together with all applicable taxes pursuant to the Excise Tax Act, R.S. 1985, c. E-15, as amended; and

(l) such further and other relief as to this Honourable Court may seem just.

6The applicant has brought a motion to have the Court Application stayed or dismissed, which will be heard on December 3, 2012. If the Court Application is not stayed or dismissed it will be heard on July 26, 2013, following delivery of affidavits and cross-examination on those affidavits.

7In support of its Request to Defer, the respondent states that the factual and legal issues raised in the civil proceedings are identical to several key issues also before the Tribunal and arise out of the same factual circumstances. They state that a decision by a judge of the Ontario Superior Court of Justice will affect jurisdiction as well as other factual and legal issues the Tribunal will be required to decide, including the issue of “common employer”. In support of its request, it relies upon decisions in which the Tribunal has deferred to civil proceedings where the applicant had commenced both a civil proceeding and a Tribunal Application: Baker v. Sears Canada, 2009 HRTO 1793; Tshaye v. English District Lutheran Church-Missouri Synod, 2010 HRTO 1396; Chowdhury v. Burger King Restaurants of Canada, 2011 HRTO 674.

8In response, the applicant argues that, in seeking declarations, including a declaration that the applicant’s employment was terminated for “valid business reasons”, the Court Application is an “obvious abuse of process and a transparent attempt to pre-empt the HRTO’s determination of those same issues”. She argues that it would be unprecedented to defer the Application in these circumstances, noting that in all the cases cited by the respondent, the other proceeding was commenced by the applicant, not the respondent. She states that the respondent is attempting to derail the Tribunal proceeding and that to grant deferral would effectively deny the applicant the opportunity to have her rights determined by the Tribunal by forcing her to first adjudicate key aspects of her application in Superior Court. She also argues that deferral is inappropriate because the filing of the Court Application is a reprisal.

9In reply, Power Tax submits that the timing of the commencement of the Court Application after the Tribunal Application is “of no consequence” and emphasizes that the “applicant was advised early in the process, and before she commenced her Application, that the Respondents DioGuardi Tax Law LLP, DioGuardi Criminal Tax LLP and DioGuardi Tax Services were not the applicant’s employer and that no representative of these entities made the decision to terminate the applicant’s employment.” It states that the Court Application deals with issues properly within the jurisdiction of the Superior Court of Justice. It emphasizes that the Tribunal does not have exclusive jurisdiction over the legal and factual issues in dispute and that Power Tax “is not precluded in fact or in law from seeking declaratory relief before the Ontario Superior Court of Justice as the court clearly has jurisdiction to deal with legal employment issues put before it”. The respondent states that the civil proceeding “in no way limits the applicant’s ability to pursue the HRTO Application” as “the respondent is not seeking a declaration with respect to issues relating to the Ontario Human Rights Code, and specifically, the applicant’s discrimination allegations”.

10The Tribunal’s approach to deferral was summarized as follows in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 1513:

Deferral suspends the Tribunal’s process pending the outcome of another proceeding. It is aimed at avoiding duplication of legal processes. It results from the recognition that a variety of tribunals have the jurisdiction to deal with human rights matters (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14) and that the facts underlying them may also arise in other proceedings.

Deferral is a discretionary decision. The Tribunal has recognized various factors as relevant to the exercise of that discretion, including the subject of the other proceeding, the nature of the other proceeding, and whether it would be fair to the parties overall to defer, having regard to the status of each proceeding: Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

11It is true that most cases of deferral result from a duplicative proceeding commenced by or on behalf of the applicant. However, in some cases the Tribunal has deferred to proceedings conducted by the respondent. In at least two cases, the Tribunal has deferred to a case where a court proceeding had been commenced by a respondent, although the Tribunal emphasized that the court actions were more advanced than the Tribunal proceeding: Atkinson v. Essex Condominium Corp. #5, 2010 HRTO 123; Hawley v. PricewaterhouseCoopers, 2010 HRTO 1886. In Mitchell v. Halton Condominium Corporation #299, 2010 HRTO 1507, the Tribunal deferred to an arbitration process under the Condominium Act, S.O. 1998, c. 19, which had been commenced by the respondent a month prior to the filing of the Application with the Tribunal. In Mitchell, the arbitrator had the jurisdiction to deal with all issues raised in the Application.

12I turn now to an application of the factors that guide the exercise of my discretion in the circumstances of this case. In my view, it is significant that the Tribunal Application was commenced first, and that the Court Application was commenced afterward. The Tribunal Application is more advanced, as full pleadings have been exchanged by both sides, and the file is ready for mediation and to be scheduled for hearing. The Court Application is still dealing with preliminary issues which will not be argued until December of 2012.

13There is also some doubt that the Court process will resolve many of the significant issues in this Application. I do not agree with the respondent that the issue of “common employer” is identical in the two proceedings. There is no “common employer” provision in the Code, and, indeed, no requirement in s. 5 of the Code that an Application be brought against an “employer”. Applications under the Code may be brought against respondents who are not the employer; see, for example, Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393. Rather, s. 5 of the Code protects against discrimination “with respect to employment”. The principal issue in this case regarding the liability of the respondents other than Power Tax, it appears, will be whether the respondents other than Power Tax are liable under this section and s. 46.3 of the Code. A key question will be whether their actions or omissions or those of their partners, officers, or employees violated the Code. The declarations sought in paras. (d) and (e) of the Court Application and the factual determinations in making them may have some influence, but will not likely be determinative of the issue of whether these respondents may be liable under the Code as this depends on issues central to the Code analysis.

14As for the other declarations sought by Power Tax, they may have more influence on a resolution of the Tribunal Application, as they relate to the reasons for the termination of the applicant’s employment, which is at the heart of this Application. However, I agree with the applicant that there is doubt about whether the Court will proceed with the Application. Ms. Millar’s motion to strike appears to have some merit and is not frivolous, in light of established jurisprudence like Canada Post Corp. v. C.U.P.W. (1989), 1989 CanLII 4337 (ON HCJ), 70 O.R. (2d) 394 (H.C.J.); and Seneca College v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181. I am concerned about deferral to the Court Application process where the question of whether it will proceed is in doubt and will not be determined for some time.

15I share the applicant’s concern that deferral in these circumstances may be a barrier to the fair, just and expeditious resolution of human rights applications. The Tribunal process is designed to ensure effective and timely access to justice for those who allege violations of the Code. Deferral, in general, is aimed at avoiding a multiplicity of proceedings. However, in these circumstances, deferral may encourage multiple proceedings, forum shopping, and delay, by giving respondents an incentive to commence parallel proceedings to lead to deferral of HRTO proceedings. I am particularly influenced by the fact that the respondents’ only explanation for the commencement of the court proceeding is disagreement with the applicant’s allegations in this process. This case, therefore, is different from Atkinson, Hawley, and Mitchell, where the respondents explained that they were seeking specific rights and remedies that could not be obtained in the HRTO process, and not merely declarations. In all these circumstances, in my view, the relevant factors weigh against deferral. I decline to exercise my discretion to defer the Application.

REQUEST TO AMEND

16The applicant asks to amend the Application to allege a reprisal. However, it appears to me that the filing of the Court Application may well be protected by absolute privilege and not properly the subject of a reprisal allegation: see Ornelas v. Casimici Restaurant, 2011 HRTO 1531 and 2010 HRTO 1078. As neither party made submissions on this issue, the Tribunal will not decide on it at this time. Instead, if the applicant seeks to pursue these amendments following mediation, she shall make submissions within two weeks of the mediation on why absolute privilege does not apply. The respondents may respond within four weeks of the mediation.

ORDER

17The Request to Defer is denied. The Application will be scheduled for mediation. If the applicant seeks to pursue the amendment to the Application following mediation, she shall make submissions within two weeks of the mediation on why she submits that absolute privilege does not apply. The respondents may respond within four weeks of the mediation.