Weihua Shi v. Holcim (Canada) Inc. and Anna Maccani, 2012 HRTO 416

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Weihua Shi

Applicant

-and-

Holcim (Canada) Inc. and Anna Maccani

Respondents

DECISION

Adjudicator: Alison Renton

Date: February 28, 2012

Citation: 2012 HRTO 416

Indexed as: Shi v. Holcim (Canada)

WRITTEN SUBMISSIONS

Holcim (Canada) Inc., Respondent ) Leola Pon, Counsel

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on February 2, 2010 alleging discrimination in employment on the grounds of family status, marital status and reprisal. The applicant also filed a Request to Expedite.

2The respondents filed a Joint Response on April 27, 2010 in which they requested the Tribunal dismiss the Application pursuant to section 45.1 of the Code because another proceeding, a complaint the applicant filed under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) which was dismissed by an Employment Standards Officer (“ESO”), had dealt with the substance of the Application. The applicant filed a request for reconsideration of the ESO’s decision to the Ontario Labour Relations Board (“OLRB”). The applicant filed a Reply on May 10, 2010.

The Applicant’s Position

3The applicant was a senior tax analyst with the respondent company and, at the time of filing her Application, had a daughter who was nine years old. Briefly, she alleges that in December 2009, the personal respondent held a meeting during which she said that for a two week period, everyone, including the applicant, would be required to work overtime and the weekend, with no days off. The applicant alleges that she told the personal respondent that she could not guarantee that she would be able to work all that overtime at work because of her family and marital status, although she could work for them from home. The applicant alleges that the personal respondent denied this suggestion stating that there were no exceptions to the in-person overtime requirement.

4From December 2009 until January 15, 2010, the applicant unsuccessfully attempted to gain some flexibility over the location of where she worked this overtime and raised concerns both in person and in writing. On January 15, 2010 the applicant’s employment was terminated. She was told that she was not a good fit for the respondent company and it was downsizing. The applicant alleges that ten days after her termination, a job posting with the same title as that held by the applicant before her termination, was posted on a job opportunities website.

5The applicant noted on her Application that she had filed a complaint under the ESA and provided a copy of her complaint to the Tribunal.

6The applicant filed a very detailed 47 page Reply responding to the respondents’ Response.

The Respondents’ Positions

7In the joint Response, the respondents submit that the applicant is a certified general accountant and worked in the accounting field previously before being employed by the corporate respondent. The applicant held the position of senior tax analyst and this position, consistent with those in this field, periodically requires working additional hours to meet deadlines, particularly at year end.

8After her probationary period was over, the respondents submit, the applicant became increasingly difficult to work with and constantly questioned and challenged the personal respondent’s requests to follow procedures. The respondents decided in December 2009 to terminate the applicant’s employment in January 2010 and did so on a without cause basis on January 15, 2010 and offered a severance package. The applicant did not raise any human rights issues either before or during her termination. The lawyer that the applicant retained for a short period of time after her termination, did not allege that the applicant’s human rights had been violated. The applicant filed a complaint under the ESA.

Procedural Background

9In an Interim Decision 2010 HRTO 649 dated March 25, 2010, the Tribunal dismissed the applicant’s Request to Expedite finding that the types of factors cited by the applicant did not constitute indications of urgency as compared with other employment discrimination cases.

10The Application was scheduled for mediation on November 22, 2010 by Notice of Mediation dated October 15, 2010. Subsequent to this, the applicant withdrew her consent to mediate and requested that the Application be scheduled for hearing.

11The Tribunal wrote to the parties dated November 12, 2010 to advise that the respondent’s section 45.1 request remained outstanding and would be dealt with prior to a hearing on the merits being scheduled. A conference call hearing was scheduled for March 2, 2011 on the section 45.1 issue. Both parties responded that the Tribunal could address the section 45.1 issue by way of written submissions and the conference call hearing was cancelled.

12In a Case Assessment Direction dated August 19, 2011 (“the August 2011 CAD”), the Tribunal noted that a number of decisions had been issued by the Ontario Labour Relations Board (“OLRB”) about the applicant’s ESA complaint and that a reconsideration hearing before the OLRB was scheduled for July 27, 2011. The Tribunal requested an update from the applicant about the status of the applicant’s request for reconsideration by the OLRB, including a copy of the OLRB’s reconsideration decision if it had been released. If the OLRB hearing was not complete, the Tribunal directed the applicant to advise the Tribunal about this. The applicant did not respond to the directions contained in the August 2011 CAD.

13In a Case Assessment Direction dated September 13, 2011 (“the September 2011 CAD”), the Tribunal noted that the applicant’s application was successful before the OLRB in a decision dated August 26, 2011, Shi v. Holcim (Canada) Inc., 2011 CanLII 52904 (ON LRB) (“the August 2011 OLRB decision”). The Tribunal invited the parties to file additional submissions about the ESA proceedings including the decisions that had already been issued by the OLRB in relation to section 45.1 of the Code issue.

14Subsequent to the September 2011 CAD, the respondents sent correspondence to the Tribunal advising that the corporate respondent (“the corporate respondent”) had filed a request for reconsideration of the August 2011 OLRB decision and requested that the Tribunal not make any decision based on the August 2011 OLRB decision until after the OLRB had addressed the corporate respondent’s reconsideration request.

15Another Case Assessment Direction dated November 9, 2011 (“the November 2011 CAD) was issued by the Tribunal. In the November 2011 CAD, the Tribunal noted that since the September 2011 CAD, the Supreme Court of Canada had issued its decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 which examined language from the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210 as amended, which is very similar to section 45.1 of the Ontario Code. The Tribunal directed the parties to file submissions explaining whether or not the Tribunal should exercise its discretion under section 45.1 of the Code not to dismiss the Application. Counsel for the corporate respondent filed submissions, but the applicant and the personal respondent did not.

16The corporate respondent submits that the Tribunal should exercise its discretion under section 45.1 of the Code to dismiss the Application as the OLRB appropriately dealt with the substance of the Application and it would be an abuse of process to allow the Application to continue. The corporate respondent also provided a copy of the OLRB’s decision of its reconsideration request, dated November 10, 2011 (“the November 2011 OLRB decision”).

The OLRB Decisions

17The OLRB issued the August 2011 OLRB decision in which it upheld the applicant’s request for reconsideration following a hearing in which viva voce evidence was given by both the applicant and the corporate respondent. In the August 2011 OLRB decision, the OLRB found that the respondent terminated the applicant in part because she raised concerns about the amount of overtime for which she was required to work between December 2009 to January 2010 and where she was required to work the overtime. The applicant’s ESA complaint, including her allegations of reprisal, were upheld.

18The November 2011 OLRB decision dismissed the corporate respondent’s request for reconsideration.

Analysis

19Section 45.1 of the Code provides that:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

20In Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, the Tribunal’s Associate Chair, writing about Figliola, supra, stated at para. 4:

In my view, the Court’s reasoning in Figliola applies equally to the interpretation of s. 45.1 of the Ontario Code, and to whether an application should be dismissed when the issues have previously been addressed in another proceeding in which the parties have had the opportunity to know the case to be met and meet it. Figliola instructs this Tribunal not to consider the procedural or substantive correctness of the other proceeding or decision when deciding whether the application or part of the application can proceed. If the reasons in the other decision dispose of the human rights issues before the Tribunal, the application or part of the application must be dismissed on the basis that it was appropriately dealt with in the other proceeding.

21The principles of Figliola and Gomez have been applied in subsequent Tribunal decisions. See, for example, U.N. v. Tarion Warranty Corporation, 2012 HRTO 211; and Jokstad v. Royal College of Dental Surgeons of Ontario, 2012 HRTO 143.

22Applying the principles of Figliola to the facts of this case, I find that the Application should be dismissed pursuant to section 45.1. In both the OLRB proceedings and the Application, the applicant raised concerns about the amount of overtime, where she would work that overtime and alleged that she was terminated for raising these concerns. It is clear from both the August 2011 OLRB decision and the November 2011 OLRB decision that the same facts and same issues were at play in those proceedings as raised in the Application. The OLRB heard evidence and rendered decisions which, in my view, appropriately dealt with the substance of the issues in this Application.

23Accordingly, the Application is dismissed pursuant to section 45.1 of the Code.