HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicola Windrem
Applicant
-and-
JF Moore Lithographers Inc.
Respondent
Decision
Adjudicator: Geneviève Debané
Indexed as: Windrem v. JF Moore Lithographers Inc.
APPEARANCES
Nicola Windrem, Applicant ) Self-represented
JF Moore Litographers Inc., Respondent ) Dean Baxendale, Representative )
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed on July 11, 2011, which alleges discrimination in employment on the basis on the basis of sex and family status and also alleges reprisal. The respondents filed a Response denying the allegations and also requested that the matter should be dismissed because the substance of the matter had been dealt with in another proceeding. The applicant filed a Reply.
2On November 16, 2011, the Tribunal, by way of Registrar’s letter, advised the parties that a preliminary hearing would be held to determine whether the application should be dismissed pursuant to section 45.1 of the Code. Section 45.1 of the Code states:
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.
3On February 23, 2012, a preliminary hearing by teleconference was held to determine whether the application should be dismissed pursuant to section 45.1 of the Code. Both parties participated in the preliminary hearing.
BACKROUND
4The applicant alleges that she commenced employment with the respondent on November 4, 2008, earning $50,000 per year. On March 13, 2009, the applicant commenced a one-year pregnancy and parental leave of absence. The applicant states that during this leave of absence a number of hourly workers were laid off, salaried employees were asked to take a week off without pay and that her manager and vice-president resigned.
5After her return to work she was presented with new terms and conditions of employment, including a revised job description and a reduction in salary of $3,000 per year.
6After contacting the Ministry of Labour, the applicant advised her employer that she must be paid at least as much as her pre-leave salary. The applicant states that the respondent’s response to this information was to reduce her salary by a total of $5,000, reduce her lunch break by 30 minutes and advised her that if she did not sign the offer they would consider her to have resigned. The applicant accepted the revised offer of employment.
7On April 8, 2010 the applicant filed a Complaint under the Employment Standards Act, 2000, S.O. 2000 c.41, as amended (the “ESA”), with the Ministry of Labour alleging reprisal and a breach of the post-leave reinstatement provisions of the ESA. The matter was assigned to an Employment Standards Officer (“ESO”) for investigation.
8Upon her return to work the applicant requested to commence her shift at 8:30 a.m. This request was denied and she was advised that she had to start work at 8:00 a.m. The applicant states that, on occasion, she was late due to traffic. On May 13, 2010, the applicant was suspended for “a number of very serious performance issues”, which she denies.
9On May 21, 2010, the applicant states that she refused to show a co-worker how to do something replying, “I’m really sorry but if I show you how to do this, I may be training myself out of a job.” When her supervisor asked to talk to her about this, she refused to meet with him without the presence of a witness. Later that day the applicant’s employment was terminated. The applicant believes that she was terminated because she took maternity leave, made requests to change her shift and that she was reprised and penalized because she complained to the Ministry of Labour. The applicant immediately contacted the Ministry of Labour to advise that her employment had been terminated.
10On July 8, 2010, the ESO at the Ministry of Labour issued a four-page decision which found no contraventions of the ESA and advised the applicant of her right to appeal the decision, within 30 days, to the Ontario Labour Relations Board (the “OLRB”). The applicant also stated during the hearing that she spoke to the ESO who verbally advised her of the decision and of her right to appeal the decision to the OLRB.
11On October 18, 2010, the applicant filed an appeal of the decision to the OLRB as well an application seeking an extension of time to file the appeal, as the applicant did not file an appeal in a timely manner. I note that all of the allegations raised in the Application are raised in the appeal before the OLRB, including allegations about the alleged reprisals and failure to accede to the applicant’s requests for accommodation.
12On February 28, 2011, the OLRB issued a decision reported at 2011 CanLII 9690 (ON LRB) declining to extend the time for filing the appeal and dismissing the applicant’s appeal.
DECISION
13There are two parts to the analysis of s. 45.1. First, I must determine whether there has been another “proceeding”. If that part of the test is satisfied, I must then decide whether that proceeding “appropriately dealt with the substance of the Application”.
14The 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. The main issue to be decided in this preliminary hearing is whether the ESA proceeding “appropriately dealt with the substance of the Application”.
15In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 (“Figliola”), the Supreme Court considered a similar provision from the British Columbia 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.
16In 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. Figliola specifically provides guidance on interpreting the term “appropriately dealt with” as it appears at s. 45.1, stating at paragraph 37:
Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”.
Figliola holds that the Tribunal’s role under s. 45.1 of the Code 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 decisions is through the appeal or judicial review routes available in the other decision-making process.
17The 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 James v. Kuehne & Nagel, above. The pregnancy and parental leave provisions and the reprisal provisions of the ESA are in essence anti-discrimination provisions. An 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.
18Having reviewed the decision of the ESO I find that the ESO considered and addressed the issues raised in this Application. Though the original Complaint was filed before the applicant’s termination from employment, I am satisfied the ESO consulted with the respondent and the applicant and the ESO decision considered and addresses the circumstances surrounding the applicant’s termination. The ESO found that the respondent did not violate the ESA when the applicant returned to work nor did it reprise against the applicant. As such, I find that the ESO decision has appropriately dealt with the substance of the Application and that the application must be dismissed on that basis.
19The appropriate mechanism to review the ESO decision was for the applicant to file a timely appeal to the Ontario Labour Relations Board. It is not appropriate for the applicant to attempt to relitigate the substance of the issues by filing this Application with the Tribunal for the reasons identified in Figliola.
20This Application is dismissed.
Dated at Toronto, this 18th day of April, 2012.
“Signed by”
Geneviève Debané
Vice-chair