Shah v. Maple Child Care Inc., 2013 HRTO 1926

Human Rights Tribunal of Ontario

B E T W E E N:

Marian Shah Applicant

-and-

Maple Child Care Inc., Maple Children’s Learning Centre, Stephanie D’Alimonte and Dan D’Alimonte Respondents

INTERIM DECISION

Adjudicator: David Muir Date: November 20, 2013 Citation: 2013 HRTO 1926 Indexed as: Shah v. Maple Child Care Inc.

WRITTEN SUBMISSIONS

Marian Shah, Applicant James A LeNoury, Counsel

Maple Child Care Inc.; Maple Children’s Learning Centre; Stephanie D’Alimonte and Dan D’Alimonte, Respondents No one appearing

Introduction

1This is an Application filed on June 28, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In her Application the applicant alleges discrimination in employment on the basis of ancestry, place of origin and sex. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related legal proceeding.

1The applicant indicates in her Application that the facts of the Application are part of a claim under the Employment Standards Act (“ESA”) that alleging a violation of the pregnancy and parental leave provisions of that statute. That proceeding is still in progress.

2On August 8, 2013 the Tribunal issued a Notice of Intent to Defer (“NOID”) this Application pending the resolution of the ESA proceeding.

3The applicant did not respond to the NOID and in a Case Assessment Direction issued on September 19, 2013 the Tribunal directed that the applicant respond to the NOID within 14 days of the date of the Direction failing which the Application may be dismissed as abandoned. The applicant has responded to the NOID and opposes deferral. The applicant argues that while her claim that her pregnancy and parental leave was a factor in her termination from employment there are other issues raised in this Application that will not be addressed in the ESA proceeding.

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

5The Tribunal has generally deferred applications where there is an ongoing ESA proceeding alleging a violation of the pregnancy and parental leave provisions under that statute. In explaining this approach, the Tribunal has referred to the fact that the pregnancy and parental leave provisions of the ESA are in the nature of anti-discrimination enactments with similar effect if not identical to the Code’s protections against discrimination on the basis of sex and pregnancy

6In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and the ESA proceeding. While the applicant argues that the Application includes other issues including an assertion that a factor in the decision of the organizational respondent was her ancestry and place of origin the allegation is at this stage simply that, an assertion. There are few if any facts to support the claim. The essence of the claim is that the fact that the applicant was on a pregnancy and parental leave at the time of the sale of business was a factor in her not being returned to work with the new employer. As such the issue in the ESA proceeding is largely co-extensive with the Application.

7The Application will therefore be deferred pending the completion of the ESA proceeding.

8The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.