Sara Tito v. 1120423 Ontario Limited, 2012 HRTO 1674

Human Rights Tribunal of Ontario

Between:

Sara Tito Applicant

-and-

1120423 Ontario Limited Respondent

Interim Decision

Adjudicator: Mary Truemner Date: September 5, 2012 Citation: 2012 HRTO 1674 Indexed as: Tito v. 1120423 Ontario Limited

Written Submissions

Sara Tito, Applicant Self-represented

1120423 Ontario Limited, Respondent Michael Warren, Representative

Introduction

1This is an Application filed December 23, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleges discrimination with respect to employment because of record of offences.

2On July 4, 2012, the applicant filed a request to amend her Application to add the ground of creed. The respondent has not responded to this Request and the time for doing so has passed.

3The respondent has requested in its Response that the Application be deferred because the facts of the Application are part of another proceeding that is still in progress at the Ministry of Labour (“Ministry”). No further submissions on the deferral request are provided, but attached to the Response is a letter from an Employment Standards Officer (“ESO”) at the Ministry to a company that is presumably the operating name of the Respondent. It states that the applicant has filed a claim for unpaid wages and pay for time periods when she was employed by the respondent, as well as for vacation pay and termination pay. The applicant filed a Reply to the Response, but did not address the request to defer.

Request to Defer

4Rule 14.1 of the Tribunal’s Rules of Procedure states that the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

5Deferral 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. However, deferral is not automatic where the parties are involved in other legal proceedings. The Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding.

6The ESO wrote in his letter that the applicant is claiming through the Ministry:

• Unpaid Wages – $3168.76 (to be determined – difference between commissions earned and minimum wage that was not paid to the claimant)
• Public Holiday Pay – (to be determined – Thanksgiving Day 2011 – wages plus public holiday pay)
• Termination Pay – (2 weeks – to be determined)
• Vacation Pay – (to be determined)
• Unpaid Wages – (minimum wage for 3 hours on last day of work $33 – to be determined)
• Reserve Fund – $1000 (to be determined)

7These amounts that the applicant claims through the Ministry are easily assessed once records are established by the parties and applied to requirements under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”). Unlike her claim at the Ministry, the Application cites a lump sum amount of $28,000 with only one sentence explaining how she calculated this amount: “I have to pay my bills.”

8In the Application, the termination of the applicant’s employment appears to be the issue that she alleges was discriminatory. She summarizes what happened to her as being “let go because of my religion” and states that she was “emotionally down for unfair dismissal.” The applicant alleges that her need arising from her religion to leave work before sundown on Fridays, and to not work on Saturday, the Sabbath, was a reason for the termination of her employment. The Application does not reference any of the claims referenced in the ESO’s letter.

9At this stage, without having actually seen the claim filed by the applicant at the Ministry, I refuse to grant the respondent’s request to defer the Application because the claim appears to address alleged contraventions of the ESA involving alleged withholding of pay and wages, and does not challenge the termination of the applicant’s employment, whereas the Application appears to be about the termination of the applicant’s employment.

10The Application will not be deferred at this stage, but if the revised Application (that the applicant is directed below to provide) alleges that any of the amounts claimed by the applicant in the proceeding before the Ministry were withheld because of her creed, then the respondent may renew its request in its revised Response.

Request to Amend

11Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended.”

12In determining requests to amend applications under s. 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the timing of the request to amend, and prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926, and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

13The applicant states that she is making the Request to add the ground of creed because, “according to legal advice,” she had made a mistake in her original Application. Indeed there is nothing described in the Application that appears to substantiate an allegation of discrimination because of record of offences and no criminal convictions are referenced in any of the pleadings.

14I am satisfied that the applicant should be permitted to amend the Application to include the additional ground of creed. The applicant made the Request at a relatively early stage in the proceedings, shortly after receipt of the respondent’s Response to her Application. The applicant seeks to add the ground of creed based on allegations already set out in the Application. As the respondent does not appear to have filed a Response to this Request, there is no apparent prejudice to the respondent in granting the Request.

15The Application is amended to add the ground of creed.

Next Steps

16The applicant is directed to immediately write to the Tribunal, copying the respondent, confirming that she no longer wishes to pursue the allegation of discrimination on the basis of record of offences. She is also directed to complete and immediately file, copying the respondent, those sections of Form 1-A of the Application Forms that deal with allegations of discrimination because of creed which were not filed with her original Application. The respondent may amend its Response after receiving that portion of the Form 1-A from the applicant.

17The respondent must immediately confirm its legal name.

18The Tribunal will proceed to schedule mediation, given the parties’ agreement indicated on the Application and Response to try it.