Shirley Gibson v. Deplaedt Enterprises Limited, 2013 HRTO 28

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shirley Gibson

Applicant

-and-

Deplaedt Enterprises Limited

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: January 7, 2013

Citation: 2013 HRTO 28

Indexed as: Gibson v. Deplaedt Enterprises Limited

APPEARANCES

Shirley Gibson, Applicant Self-represented

Deplaedt Enterprises Limited, Respondent William Deplaedt, Representative

Introduction

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 with respect to employment because of disability and family status.

2The respondent requested that the Tribunal dismiss the Application pursuant to s.45.1 of the Code, arguing that another proceeding, a decision under the Employment Standards Act, 2000 (the ESA decision) made by the Ministry of Labour, had appropriately dealt with the substance of the Application.

3A teleconference hearing was subsequently convened during which the Tribunal heard submissions from the parties on the issue of dismissal based on s.45.1 of the Code.

4For the reasons that follow, this Application is dismissed.

5The purpose of s. 45.1 of the Code is to avoid the duplication of proceedings and the re-litigation of issues that have been appropriately dealt with elsewhere. Section 45.1 of the Code provides as follows:

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.

6Section 45.1 is generally considered in two parts: (1) was there another “proceeding” and (2) if so, did it “appropriately deal with” the substance of the application.

7With respect to the first issue, the Tribunal has held on a number of occasions that an ESA complaint process meets the requirements of a “proceeding” for the purposes of section 45.1 of the Code: see for example, Henderson v. Nutech Fire Protection, 2010 HRTO 2153. The Tribunal has also found that, for the purposes of section 45.1 of the Code, a “proceeding” need not involve a hearing or an opportunity to make oral submissions and may involve a settlement: see for example Dunn v. Sault Ste. Marie (City), 2008 HRTO 149. In Dunn, the Tribunal held that a grievance settlement constitutes a “proceeding” that comes within the ambit of section 45.1:

I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and the purposes of s. 45.1. The provision refers to a “proceeding” having “dealt with” the matter, rather than using narrower words that would only encompass adjudication like “decision” or “reasons”. More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.

8For the above reasons, I am satisfied that the complaint process under the ESA is a proceeding within the meaning of section 45.1 of the Code.

9With respect to the second issue, the question is whether or not the ESA process appropriately dealt with the substance of the Application.

10The applicant makes one central allegation involving a breach of the Code: that the respondent employer terminated her because of the ill health of a family member. While she also alleges that employees of the respondent employer breached her privacy rights, there is no link made between those allegations and any alleged breach of the Code.

11The ESA process concerned the applicant’s entitlement to termination and severance pay. While the privacy issues were also raised with the Employment Standards Officer (the “ESO”), no findings of fact were made in respect of those concerns.

12The ESO did make findings of fact relating to the termination issue. The ESO found that the applicant tendered her resignation in writing on April 23, 2011, indicating that the reason for the resignation was “unforeseen family health issues”. The employer then suggested that rather than resign, the applicant go on sick leave until she was ready to return to work. The applicant initially agreed and the employer provided a Record of Employment (“ROE”) indicating the applicant would be off work for illness or injury. The employer then received another letter from the applicant on July 19, 2011, resigning her employment. This time, the resignation was accepted by the respondent employer. The ESA decision makes a finding that the applicant’s employment was not terminated, but rather that she resigned her employment on two occasions. As such, the central issue underlying the applicant’s allegations of a breach of her rights under the Code have been squarely addressed in the ESA proceeding.

13Accordingly, the Application is dismissed.