Grosdanis-Chiodo v. Facility Association, 2012 HRTO 2274

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Grosdanis-Chiodo Applicant

-and-

Facility Association Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: December 5, 2012

Citation: 2012 HRTO 2274

Indexed as: Grosdanis-Chiodo v. Facility Association

WRITTEN SUBMISSIONS

Elizabeth Grosdanis-Chiodo, Applicant Cedric P. Lamarche, Counsel

Facility Association, Respondent Pamela Yucovitch, Counsel

Introduction

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 reprisal and discrimination with respect to employment because of family status. This Interim Decision deals with the issue of deferring the Application pending the completion of a related civil action.

2The Tribunal issued a Notice of Tribunal Intention to Defer (“Notice”) dated August 14, 2012, seeking submissions from the parties on the appropriateness of deferring the Application. The applicant filed submissions opposing deferral while the respondent filed submissions in support of deferral.

3The Application contains allegations related to the applicant’s termination on May 25, 2012, after approximately two years of employment. The applicant alleges discrimination against her former employer for failing to accommodate her family circumstances which affected her ability to travel for a work assignment. The applicant alleges, in paragraph 28 of the narrative of her Application, that she was terminated for her refusal to travel on the grounds of family status, and for having forced the respondent to accommodate her in that regard. She also alleges reprisal on the basis that a manager punished her for asserting her need for accommodation by creating a hostile work environment. She seeks an order for appropriate sensitivity training as well as $50,000.00 in monetary compensation for “damages for violations to the Code, reprisal, humiliation, hurt feelings, the loss of self-respect, dignity and confidence, and mental distress.”

4The applicant also issued a Statement of Claim against the same respondent on July 13, 2012. Copies of the pleadings in the civil action were provided to the Tribunal.

5In the civil action the applicant is seeking damages for wrongful dismissal, special damages related to expenses incurred in an attempt to seek alternative employment, legal costs and interests. The civil action was commenced a few days before the Application was filed.

6In the civil action, the applicant alleges that she was induced to leave her previous employment and that she is entitled to reasonable notice for the termination. The statement of claim does not make any reference to discrimination or the underlying facts alleged to support her Application before the Tribunal.

7The statement of defence alleges that the applicant was aware when she accepted the position that she would be required to travel and that she was unwilling to remain at audits outside of Southern Ontario for longer than two or three days. The statement of defence also contains references to the circumstances which gave rise to the applicant’s inability to travel just prior to her termination. The respondent is defending the civil action on the basis that it had just cause to terminate the applicant.

8The 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 (Rule 14.1). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, 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 with the application.

9Despite the lack of overlap in the remedies sought, the reality is that if both the civil action and the Tribunal Application proceed at the same pace, decision-makers in two forums will be called upon to make findings of fact that relate to the applicant’s termination. The entire history of the applicant’s employment, including the allegations which relate to the cause of her inability to travel, are set out in the pleadings in the civil action and the Tribunal Application. In my view, it makes no difference that the applicant has carefully avoided referring to the human rights implications of her termination in the civil action. The applicant does not exercise unilateral control over the issues in that proceeding and the defendants have clearly raised, in their defence, their version of the facts underlying the applicant’s termination. Those facts relate in part to the applicant’s inability to travel, which is directly connected to her allegations of discrimination.

10I also note that in her reply to the statement of defence the applicant alleges that the person who created a hostile work environment following the disclosure of her need for accommodation on the basis of family status, also engaged in inappropriate comments and conduct toward women which “created a work environment permissive of sexually explicit and suggestive behaviour.” The applicant is not alleging a hostile work environment on the basis of gender and makes these allegations in defence of allegations against her that she engaged in sexually explicit communications. However, it is difficult to see how this evidence can be compartmentalized so as to ensure that only questions relevant to the discrete hostile work environment allegations in each forum are permitted.

11However, the civil action and the Application are both at the same early stage, and as a result, I would not exercise my discretion to defer the Application at this time because of a risk of inconsistent factual and legal findings. There may be a point at which there is a real potential for concurrent decision-making, at which time, deferral may be appropriate.

12Accordingly, the Notice is set aside. The respondent will have 35 days from the date of this Interim Decision to file a Response to the Application.

13I am not seized.