Soskic v. Pickle Barrel Erin Mills Ltd., 2012 HRTO 905

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aleksandra Soskic

Applicant

-and-

Pickle Barrel Erin Mills Ltd.

Respondent

DECISION

Adjudicator: Mary Truemner

Date: May 7, 2012

Citation: 2012 HRTO 905

Indexed as: Soskic v. Pickle Barrel Erin Mills Ltd.

APPEARANCES

Aleksandra Soskic, Applicant ) Self-represented )

Pickle Barrel Erin Mills Ltds., ) Margaret Zellermayer and Vincent

Respondent ) D’Cruz, Representatives

BACKGROUND

1The applicant filed an Application with the Tribunal on June 1, 2011, pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment based on marital status because, after she married, the respondent refused to re-arrange her shifts at the restaurant where she held a management position. She also alleges discrimination based on sex because she believes her pregnancy and the appearance that she would take a maternity leave were at least a factor in the decision to terminate her employment.

2The respondent filed a Response on October 11, 2011. The respondent denied any allegations of discrimination, and requested that the Tribunal dismiss the Application pursuant to s. 45.1 of the Code on the basis that proceedings under the Employment Standards Act, 2000, S.O. 2000, c.41 (“ESA”) had appropriately dealt with the subject-matter of the Application pertaining to the allegation that the applicant’s employment was terminated because she was pregnant.

3On 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, (“Figliola”). The decision dealt with a provision in the British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210: s. 27(1)(f) which is similar to that of s. 45.1 of the Ontario Code, and sent a clear caution to any parties attempting to challenge an administrative decision in a forum other than through the appropriate appeal process.

4The Tribunal issued a Case Assessment Direction on November 9, 2011, directing that a summary hearing by way of teleconference be scheduled to determine whether the Application had no reasonable prospect of success. The applicant was advised that she would need to explain the link between the respondent’s alleged conduct and a Code ground, and to address whether the Application should be dismissed in whole or in part pursuant to s.45.1 with reference to Figliola.

5The summary hearing was held by way of conference call on March 15, 2012. Both parties made submissions at that time.

MARITAL STATUS - WHETHER THERE IS NO REASONABLE PROSPECT OF SUCCESS

6Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

8The pivotal facts with respect to the allegation of discrimination based on marital status are not in dispute. The applicant states that when she began working with the respondent in 2010, she would have liked to have spent time with her fiancé, but, as she was not married, “it did not really matter” that she had many late shifts. When she and her fiancé married, however, she wanted to be scheduled less in the evenings in order to spend time with him. He worked only days. The respondent reduced her evening shifts somewhat, but not as much as the applicant wanted. She stated that this is a violation of the Code because she has a right to spend time with her husband in the evenings.

9Section 10 of the Code defines marital status:

“Marital status” means the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage

10The applicant stated that, despite some changes to allow her more evenings off after she married, the respondent basically treated her the same way with respect to scheduling shifts before and after she married her fiancé. She cannot, therefore, be successful with a claim of differential treatment on the basis of her marital status. (See Morin v. Toronto Police Services Board, 2009 HRTO 618).

11The applicant did not argue constructive discrimination on the basis that the seemingly neutral scheduling that required evening work restricted or excluded married employees. While the applicant did allude to her efforts to conceive, she made no argument that doing so would require time with her husband in certain evening hours as opposed to other hours. She instead focused her argument on her belief that, as a married woman, she has the right to spend evenings with her husband. Such a right simply does not exist under the Code. The Code requires that married, single and co-habiting people be treated equally with respect to employment. Ironically, the respondent might risk violating the Code if it were to grant more scheduling favours to married employees than unmarried ones without a justification of accommodating a special need arising from marital status.

12The allegation of marital status discrimination therefore has no reasonable prospect of success and that part of the Application is dismissed.

SEX (PREGNANCY) – S.45.1 APPLIES

The ESA

13Section 46(1) of Part XIV of the ESA states the following with respect to pregnancy:

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.

14Section 74(1) of the ESA 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.

15The applicant filed her claim pursuant to the ESA on June 1, 2011, and, amongst other allegations, alleged that the respondent had terminated her employment because of pregnancy.

16On July 7, 2011, the respondent and the applicant with her representative attended a meeting with an ESA Employment Standards Officer (ESO). At that meeting, the ESO reviewed oral and documentary evidence from both parties with respect to the allegation that pregnancy was a reason for the termination.

17On August 11, 2011, the ESO issued her decision denying the applicant’s claim. The following is an excerpt from the ESO decision:

Based on the fact that the claimant believes that her pregnancy was a factor in her termination from employment [,] in essence she is stating that she was reprised against by the employer because she became pregnant. The evidence does not indicate that the claimant was reprised against. The evidence indicates that there were cumulative reasons for the claimant’s termination from employment such as taking time to do her personal business during business hours and customers’ compIaint[s].

…Based on all the evidence, it is my determination that the employer has not been found to be in violation of the [ESA].

It is determined that the employer has not contravened section 46(1) of [the ESA] because pregnancy was not a factor in its decision to terminate.

18The 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). She did not do so, but the applicant argues that the decision was wrong.

19The applicant argued that the ESO should not have considered the evidence of the respondent that showed the respondent had reasons unrelated to pregnancy to terminate her employment. The applicant argued that the ESO “should have looked at the pregnancy claim exclusively.” I disagree with the applicant’s position that the ESO should not have reviewed the respondent’s evidence pertaining to reasons for termination unrelated to the applicant’s pregnancy. Such evidence would be necessary in any thorough review of whether discrimination on the basis of sex (pregnancy) was a factor in the termination.

Overlap with the Code

20Section 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.

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 James v. Kuehne & Nagel, 2011 HRTO 2317.

23In Figliola, the Supreme Court of Canada considered a provision in British Columbia’s human rights legislation which is similar to s.45.1 of the Code, and the principles set out in that decision apply to s. 45. 1. (See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297). At paragraph 34 of Figliola, the Court summarized the principles 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.

24The ESA proceeding dealt with whether the applicant’s pregnancy (and a related expectation that the applicant would need time off) was a reason for the termination of her employment. It therefore dealt with the same facts and issue involving pregnancy as raised in the Application. For this part of the application to proceed, the Tribunal would need to hear the same evidence from the same witnesses about the same issue as before the ESO, a situation that Figliola identified as a situation to be avoided. I also note that the pregnancy and parental leave provisions along with section 74 of the ESA are anti-discrimination provisions and that 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. An ESO also has the power to reinstate an employee to their employment in appropriate circumstances. (See Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443).

25The applicant is unhappy with the ESO’s decision, but it is not for the Tribunal to comment on whether the ESO correctly decided the human rights issue. The Tribunal does not replace the appeal process provided for by the ESA and it cannot be the venue for the applicant to appeal the ESO’s decision. As stated in Okoduwa, above:

The [Supreme Court of Canada in Figliola] 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.

26Having applied the principles of Figliola, I find that the ESA proceeding appropriately dealt with the substance of the Application pertaining to the allegation of sex discrimination and that part of the Application is also dismissed in accordance with section 45.1 of the Code.

ORDER

27The Application is dismissed.