Wong v. Vestas Canadian Wind Technology Inc., 2012 HRTO 1720

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Wong

Applicant

-and-

Vestas Canadian Wind Technology Inc.

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson
Date: September 11, 2012
Citation: 2012 HRTO 1720
Indexed as: Wong v. Vestas Canadian Wind Technology

WRITTEN SUBMISSIONS

Cynthia Wong, Applicant
Christopher Perri, Counsel

Vestas Canadian Wind Technology Inc., Respondent(s)
Patrick Gannon, 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 and family status. The purpose of this Interim Decision is to determine whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of proceedings under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”).

Background

2In her Application, the applicant alleges that she commenced a pregnancy and parental leave on November 7, 2011, pursuant to the ESA, and that the respondent terminated her employment on February 12, 2012, despite the fact that she was on an approved leave at the time. The applicant alleges that the respondent gave no reason for her dismissal. On or about June 7, 2012, the applicant filed a complaint to the Ontario Ministry of Labour complaining that the termination of her employment while on pregnancy and parental leave violated her rights under the ESA and amounts to a reprisal.

3The Tribunal issued a Notice of Intent to Defer the Application, dated July 30, 2012, because it may be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application. The Tribunal directed the parties to make submissions regarding whether the Tribunal should defer the Application.

4The applicant submitted that her complaint under the ESA will involve a determination of whether dismissing her while on parental leave is a violation of the ESA, in particular her right to reinstatement following such a leave. The applicant submitted that the Application before the Tribunal concerns the matter discrimination under the Code and that the focus of the Tribunal’s inquiry will be on the motives and reasons for the employer’s action. The applicant submitted that the Employment Standards Officer investigating the ESA complaint will not have jurisdiction to apply the Code, unlike labour arbitrators or the courts. The applicant submits that she seeks different remedies in the two proceedings, i.e., declaratory relief and reinstatement of employment in the ESA complaint and damages and reinstatement in her Application to the Tribunal. The applicant submitted that there is no risk of duplication, since she can only be reinstated once. The applicant submitted that it would not be fair to defer the Application because her ESA complaint has yet to be assigned for investigation. The applicant submitted that her request for reinstatement adds urgency to the matter because she remains on leave and will soon need to assess her employment options and will have significantly greater participatory rights through her Application to the Tribunal.

5The respondent submitted that the subject matter of the ESA complaint and Application are the same or very similar, i.e., the respondent is alleged to have terminated the applicant’s employment while on pregnancy and parental because, at least in part, she was on pregnancy and parental leave. The respondent submitted that all of the facts and respondent’s motives will be the subject of adjudication in both proceedings. Accordingly, the respondent submits that there is significant risk of inconsistent findings should the matters proceed concurrently. The respondent submitted that the remedies available in both proceedings are potentially quite similar, as noted by the Tribunal in Edwards v. Heydary Hamilton, 2011 HRTO 421. The respondent argued that the fact that a reprisal claim to the Ministry of Labour does not allege discrimination does not prevent deferral of an Application and cited Dykstra v. RLM Manufacturing, 2010 HRTO 1871.

Analysis and Decision

6The 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.

7In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:

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.

8The 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.

9The Tribunal has deferred Applications because of an ESA proceeding alleging a contravention of the ESA on the grounds of pregnancy on several occasions. See Edwards, supra, Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448, Lutgens v. Oxford University Press, 2009 HRTO 797, and Matechuck v. OLG at Thousand Islands, 2009 HRTO 324.

10A 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.

11However, in my view, it does not follow that an Application should not be deferred if the other proceeding is only 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.

14In this case, the circumstances giving rise to the Application and the ESA claim are the same. If the ESA claim and the Application proceed at the same time, the parties will be required to concurrently address substantially the same issues in two different forums. There is a potential for inconsistent findings.

15The remedies that are available to a person under the ESA and the Code are potentially quite similar, depending on the nature of the allegation. See Golon, supra, at paragraph 14. Pursuant to section 104(1) of the ESA, if an Employment Standards Officer finds that an employer has contravened the pregnancy leave provisions of the ESA, the Officer may order that the employee be compensated for loss or that she be reinstated, or both compensated and reinstated. Compensation can include compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering. While not identical, the remedies potentially available under the ESA in pregnancy cases are thus similar to the remedies that are available under the Code.

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.