Ebinehita Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ebinehita Okoduwa

Applicant

-and-

Husky Injection Molding Systems Ltd.

Respondent

DECISION

Adjudicator: Alan G. Smith

Date: March 1, 2012

Citation: 2012 HRTO 443

Indexed as: Okoduwa v. Husky Injection Molding Systems Ltd.

ORAL AND WRITTEN SUBMISSIONS

Ebinehita Okoduwa , Applicant ) Self-represented )

Husky Injection Molding Systems, )

Respondent ) Lisa Talbot, Counsel

BACKGROUND

1The applicant filed an Application with the Tribunal on July 8, 2010, pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It is important to note that the application alleges discrimination in employment on the basis of disability, not sex.

2The respondent filed a Response on October 15, 2010. The respondent requested the Tribunal defer consideration of the Application pending the conclusion of proceedings under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

3The Tribunal issued an Interim Decision on December 7, 2010, 2010 HRTO 2437, deferring the Application pending the conclusion of the ESA proceedings.

4On January 7, 2011, the respondent requested that the Tribunal dismiss the Application pursuant to s. 45.1 of the Code and Rule 22 of the Tribunal’s Rules of Procedure on the basis that the ESA proceedings had concluded and had appropriately dealt with the subject-matter of the Application.

5On January 12, 2011, the applicant filed a Request for an Order During Proceedings requesting reactivation of the Application.

6The Tribunal issued an Interim Decision on March 14, 2011, 2010 HRTO 534, directing that a conference call be scheduled to hear submissions on the Request to Dismiss.

7A conference call was conducted before me on September 22, 2011. Both parties made submissions at that time.

8On October 27, 2011, the Supreme Court of Canada released the decision in Workers Compensation Board of British Columbia v. Guiseppe Figliola et. al. 2011 SCC 52. The decision dealt with a provision in the British Columbia Human Rights Code similar to that of s. 45.1 of the Ontario Code.

9On November 15, 2011, a Case Assessment Direction was sent to the parties requesting submissions regarding the effect, if any, of the decision in Figliola on the present case.

10Both the applicant and respondent made written submissions in response to the Case Assessment Direction. The respondent did not reply to the applicant’s submissions.

FACTS

11The pivotal facts are not in dispute. The applicant began her employment with the respondent on May 20, 2008. In September 2009 the applicant suffered a miscarriage and was off work for several weeks. On January 6, 2010, she informed the employer that she was again pregnant and might need to take time off from work due to pregnancy related issues due to a history of previous difficulties with pregnancy. The applicant’s employment was terminated on January 18, 2010.

12On June 29, 2010, the applicant filed a complaint pursuant to the ESA s. 74 (1) (viii).

13On November 18, 2010, a meeting was held with an ESA Employment Standards Officer (ESO). Both parties attended the meeting and were represented by counsel. The parties confirmed during the conference call with me that all the documents provided to the Tribunal were also provided to the ESO.

14On November 29, 2010, the ESO issued his decision denying the applicant’s claim. The following is an excerpt from the ESO decision:

I determine no contravention of s. 74(1) (viii) as claimed because I find that the employer met the burden of proof under s. 74 (2) that it did not contravene the preceding provision and that the claimant’s dismissal was not because the claimant intended to take pregnancy and parental leave….

I do not find that the evidence supports that the employer’s motivation to choose the claimant for termination in mid-December 2009 was the claimant’s September 2009 miscarriage and related absence from work as alleged….

I find that the decision to terminate was made in mid-December 2009, the motivation for the termination were bona fide business reasons and not any known or unknown protected activity of the claimant under s. 74(1) (viii) and it was reasonable under the circumstances for the employer not to act on the decision to terminate until mid-January 2010.

15The letter which accompanied the ESO decision advised the applicant that, pursuant to the ESA, she had 30 days to appeal the decision to the Ontario Labour Relations Board (OLRB).

ANALYSIS

The Applicable Legislation

16The ESA Part XIV (Leaves of Absence) states:

46. (1) A pregnant employee is entitled to a leave of absence without pay unless her due date falls fewer than 13 weeks after she commenced employment.

(6) If an employee stops working because of a complication caused by her pregnancy or because of a birth, still-birth or miscarriage that occurs earlier than the due date, subsection (4) does not apply and the employee shall, within two weeks after stopping work, give the employer,

(a) written notice of the day the pregnancy leave began or is to begin; and

(b) if the employer requests it, a certificate from a legally qualified medical practitioner stating,…

(i) in the case of an employee who stops working because of a complication caused by her pregnancy, that she is unable to perform the duties of her position because of the complication and stating her due date,

17The ESA Part XIV (Reprisal) states:

74. (1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a) because the employee…

viii) is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV;

(2) Subject to subsection 122 (4), in any proceeding under this Act, the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer.

18Section 45.1 of the Code provides:

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.

The Parties Submissions

19The applicant makes two arguments as to why s. 45.1 of the Code should not apply to her application:

1. This application was filed concurrently with the application to the Employment Standards Branch, unlike the Figliola case where a decision had been made before a new claim was filed with the British Columbia Human Rights Tribunal.

2. These were two very different and separate claims, each of which has to be reviewed independently of each other. No matter how the respondent tries to lump the two claims together they are different. The claim under the ESA was based on discrimination due to pregnancy and the claim under the Code is based on disability present from birth.

20In response, the respondent employer argues that, “there is no meaningful distinction between the facts in Figliola and the facts in the present Application”. The employer argues that the ESO had appropriately dealt with the allegation contained in the Application, i.e., discrimination based on disability. It submits that the ESO concluded that the termination of employment was solely related to a bona fide business restructure. The respondent stated that if the applicant was dissatisfied with the conclusions of the ESO, she had a right to submit the decision to the OLRB for review.

Legal Principles

21Section 45.1 of the Code requires a two-part analysis: (1) was there another “proceeding” and (2) if so, “did it appropriately deal with the substance of the Application”.

22The Tribunal has held that a claim determined by an ESO constitutes a “proceeding” within the meaning of the Code. See, Little v. TeleTech Canada, 2009 HRTO 1763, Poirier v. MacLean Engineering & Marketing, 2010 HRTO 1672 and the recent decision James v. Kuehne & Nagel, 2011 HRTO 2317.

23The critical issue to be decided is whether the ESA proceeding, “appropriately dealt with the substance of the Application”.

24In Figliola, the Supreme Court of Canada considered a similar provision from the British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210: s. 27(1)(f). At paragraph 34 of Figliola, the Court summarized the principles that underlie provisions such as s. 45.1 as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on;

• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings ;

• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature;

• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision; and

• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

25The Supreme Court of Canada’s decision in Figliola provides guidance as to the interpretation of “appropriately dealt with” as it appears in s. 45.1. The Court makes clear that the Tribunal’s role is not to sit in appeal of other decision-makers in their determination of human rights issues. Nor is it appropriate for the Tribunal to use s. 45.1 as a vehicle for a collateral attack on the merits of another decision-making process; the appropriate route for challenging another decision is through the appeal or judicial review routes available in the other decision-making process.

26Thus, the Tribunal’s principal concern in applying s. 45.1 is not whether parallel litigation has correctly determined the human rights issues, but whether the applicant has already had an opportunity to have the human rights claim considered by an adjudicator who had jurisdiction to interpret and apply the Code: see Figliola, at para. 49; Gilinsky v. Peel District School Board, 2011 HRTO 2024, and the recent decision in U.N. v. Tarrion Warranty Corporation, 2012 HRTO 211.

27In Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, the Tribunal confirmed that the principles set out in Figliola apply to the interpretation of s. 45.1 of the Code.

28The applicant argues that the decision-making process under the ESA did not appropriately deal with the substance of the Application because the ESO did not address the human rights issue raised in the Application i.e., that the applicant’s employment was terminated because she suffers from a disability.

29I do not accept the applicant’s argument that this case is distinguishable from Figliola on the basis that the ESA complaint and Application were filed almost concurrently. In Figliola, the complainant disagreed with a decision of the Workers’ Compensation Board of British Columbia. Instead of availing himself of the right to judicial review, he instead initiated a complaint to the British Columbia Human Rights Tribunal. In my view, the applicant in the present case is attempting to do exactly the same thing. Her Tribunal Application was deferred pending the outcome of the ESA process. She is apparently dissatisfied with the ESO decision but has not availed herself of the statutory appeal to the OLRB. Instead, the Applicant has reactivated her dormant Tribunal Application.

30The applicant also takes issue with the fact that the ESO did not decide the human rights issue, that being with regard to the Code enumerated ground of “disability’, but rather was only concerned about “discrimination due to pregnancy”. In my view this is only a matter of semantics, and hence the applicant’s argument must fail.

31The similarity between applications filed under the Code and claims filed under the ESA related to pregnancy and parental leave has been noted by the Tribunal. See, Chen v. Harris Rebar, 2009 HRTO 227 and Kuehne & Nagel, above. The pregnancy and parental leave provisions along with section 74 of the ESA are anti-discrimination provisions and the ESO has broad remedial powers to address any violations, including damages for lost wages, loss of reasonable expectation of ongoing employment and damages for mental distress, as well as the power to reinstate an employee to their employment in appropriate circumstances.

32In the present case, the essence of the Application is that the applicant’s employment was terminated by the respondent at least partially on the basis of reprisal because she suffers from a disability i.e., that she has a history of miscarrying, and hence might require a leave of absence from work. The Application was brought on the basis of the Code enumerated ground of “disability” and not “sex” (which includes pregnancy). Obviously, however, one can only suffer a miscarriage if one is pregnant. Moreover, s. 46(6)(b)(i) of the ESA, above, clearly incorporates under pregnancy the essence of the disability claim being alleged before this Tribunal. On reading the ESO decision, I am satisfied that discrimination on the basis of pregnancy, or reprisal for taking leave necessitated by “a complication caused by her pregnancy” (ESA ss. 46 and 74, above), were thoroughly canvassed by the ESO. In my view, this latter aspect of the applicant’s claim that was dealt with in the ESO decision is no different than her claim before the Tribunal.

33Even if the applicant is correct in her assertion that the ESO failed to “adequately” address the human rights aspect of her termination, it does not justify proceeding with the Application. The review under s.45.1 is not an assessment of the “adequacy” of the outcome of another proceeding. The ESA provides for a robust mechanism to challenge a decision by an ESO. In accordance with the decision in Figliola, I am satisfied that appeal process would have afforded the applicant with a further opportunity to raise human rights issues before a decision-maker with the jurisdiction to address them. 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 SCC 14). While it may not be clear if this applies to a decision of an ESO, it clearly would apply to the OLRB in deciding the appeal of an ESO’s decision. See, Golan v. Addison Chevrolet Buick GMC, 2010 HRTO 448.

Dismissal pursuant to s. 45.1

34The fact that the applicant may disagree with the result before the ESO is not a sufficient or proper basis to allow her Application to proceed before the Tribunal, to hear the same evidence from the same witnesses arising out of the same factual circumstances and raising the same factual issues. The applicant already has been given one opportunity to address her allegations before the ESO, and it would be contrary to the principles underlying s. 45.1 of the Code to allow her to have a second opportunity to go over the same ground before this Tribunal. See, Zeamanuel v. Avcan Management, 2010 HRTO 1721.

ORDER

35The Application is dismissed pursuant to s. 45.1 of the Code.