Deanne Boomer v. Madelyn’s Diner Inc. and Madelyn Carty, 2012 HRTO 911

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deanne Boomer

Applicant

-and-

Madelyn’s Diner Inc. and Madelyn Carty

Respondents

decision

Adjudicator: Maureen Doyle Date: May 10, 2012 Citation: 2012 HRTO 911 Indexed as: Boomer v. Madelyn’s Diner Inc.

APPEARANCES

Deanne Boomer, Applicant ) Self-represented Madelyn’s Diner, Respondent ) Madelyn Carty, Representative Madelyn Carty, Respondent ) Self-represented

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 discrimination in employment on the basis of sex.

2The respondents denied having discriminated against the applicant, and in the Response, included a decision of the Ministry of Labour dealing with the applicant regarding unpaid wages, eating periods and reprisals. The Response includes a Request for Dismissal under s. 45.1 on the basis that the Ministry of Labour found that the “claim was unfounded, and the termination was related to other matters.”

3On January 19, 2012, the Tribunal wrote to the parties, advising that there would be a preliminary hearing with an opportunity to provide oral submissions regarding whether another proceeding had appropriately dealt with the substance of the Application. The letter quoted section 45.1 of the Code and advised the parties that in preparing their submissions they may wish to consider in particular the decision of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) and the decision of the Tribunal in Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 (“Gomez”).

4A hearing was held by conference call on April 24, 2012.

BACKGROUND

5The applicant was employed as a server at the premises of the corporate respondent. She alleged that when she advised the personal respondent Ms. Carty, who is also the owner of the corporate respondent, that she was pregnant, Ms. Carty was not happy and reduced her hours. She alleged that she went to speak to Ms. Carty about the reduction in hours and that when she asked Ms. Carty if she recalled having promised her more hours, Ms. Carty responded “yes, but then you went and got pregnant”. The applicant alleged that the following day Ms. Carty phoned her, accused her of refusing to clean tables, and terminated her. In her Application, she indicated that she believes she was discriminated against in scheduling and in being fired because she was pregnant.

6The personal respondent filed a Response on her own behalf and on behalf of the corporate respondent. In the Response, she denied any discrimination. Ms. Carty denied ever having mentioned the applicant’s pregnancy in a negative or derogatory manner. She alleged that on the applicant’s last day at work, the applicant refused to clean her section prior to speaking to Ms. Carty about shifts. She also alleged that the applicant had a history of taking time off. She alleged that she terminated the applicant’s employment for insubordination and for her history of taking time off.

7As noted above, the respondents also requested dismissal of the Application pursuant to s.45.1 and enclosed in the Response documentation from the Ministry of Labour relating to the applicant’s claims made under the Employment Standards Act, 2000, (“ESA”) including correspondence from the Ministry and the October 3, 2011 Reasons for Decision.

8The ESA Reasons for Decision indicate that the issues for determination were unpaid wages, eating periods and reprisal. In considering the issue of reprisal, the decision states that the applicant alleged that her hours of work were reduced when she told Ms. Carty that she was pregnant and that Ms. Carty had told her that her hours were reduced because she was pregnant. It notes that Ms. Carty denied ever having made such a comment about the applicant’s pregnancy. The Reasons then state that a review of the time sheets and payroll information reveals that the applicant’s hours were gradually increased after she advised the employer she was pregnant. The ESA decision then states:

I find no evidence, therefore, that the employer engaged in a reprisal against Ms. Boomer after learning that she had the right to take a leave, by penalizing her – that is, reducing her scheduled hours of work, as Ms. Boomer has alleged.

9The Reasons for Decision then went on to consider the question of whether the applicant’s employment was terminated because she was pregnant and entitled to take a leave. The Reasons state:

I find, based on a balance of probabilities and the best available evidence, that Ms. McCarthy [sic] did not terminate Ms. Boomer’s employment because she was pregnant and had the right to take a leave, rather, it was for other, unrelated reasons.

Preliminary Hearing

10At the preliminary hearing in this matter, the applicant submitted that the Ministry of Labour had not properly dealt with her claim. She submitted that she went to the Ministry of Labour for lost wages and for breaks, but that this Application is about discrimination. In particular, she submitted that the Ministry of Labour did not address her allegation that Ms. Carty had said “You went and got pregnant and that is why I reduced your hours”. She submitted that the Ministry of Labour did not deal with this allegation.

11The respondent submitted that the Ministry of Labour has appropriately dealt with the substance of this Application. She submitted that she had provided the Ministry of Labour with everything they asked for, including schedules which showed that the applicant’s hours had increased. She did not disagree that the Ministry of Labour did not specifically address the applicant’s allegation that she had said that she had reduced the applicant’s hours due to her pregnancy.

12There is no evidence that either party sought to review the ESA complaint decision and the time for doing so has expired.

ANALYSIS

13Section 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.

14I am satisfied that the ESA proceeding appropriately dealt with the subject matter of the Application in the circumstances for the purposes of section 45.1 of the Code.

15The Tribunal has, on a number of occasions, concluded that an ESA complaint process meets the requirements of a proceeding for the purposes of section 45.1 of the Code. See Poirier v. MacLean Engineering & Marketing, 2010 HRTO 1672; Little v. TeleTech Canada, 2009 HRTO 1763; Rockley v. Cradock, 2009 HRTO 143; Mukherjee v. RMF Design and Manufacturing, 2010 HRTO 2111; and Henderson v. Nutech Fire Protection, 2010 HRTO 2153.

16In Gomez, the Tribunal has found that the Court’s reasoning in Figliola applies equally to the interpretation of s. 45.1 of the Ontario Code and stated at paragraph 4 that:

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.

17The central issue in both the proceeding under the ESA and the Application before the Tribunal is whether the applicant was treated differently because she was pregnant. In particular, in her Application, she has alleged that she was discriminated against by a reduction in shifts and in having her employment terminated, all of which she alleged occurred because of her pregnancy. In her narrative, she has indicated that Ms. Carty told her that she had reduced the applicant’s hours because the applicant was pregnant. The allegation that Ms. Carty made this statement is an indication of the evidence the applicant would have sought to rely upon to establish that the respondents had reduced her hours due to her pregnancy. The substance of that complaint, however, has been dealt with in the ESA proceedings, as has the substance of the complaint that the respondents terminated her employment due to her pregnancy. In the circumstances of this case, I am satisfied that the ESA matter has appropriately dealt with the substance of this Application.

18The Application is dismissed.