Filka v. Hank DeKoning Limited, 2013 HRTO 361

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lorrie Filka

Applicant

-and-

Hank DeKoning Limited

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman Date: March 4, 2013 Citation: 2013 HRTO 361 Indexed as: Filka v. Hank DeKoning Limited

WRITTEN SUBMISSIONS

Lorrie Filka, Applicant Self-represented

Hank DeKoning Limited, Respondent Dennis Touesnard, Counsel

Introduction

1The applicant has brought this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She alleges discrimination with respect to employment because of gender expression (although it appears on the face of the narrative contained in the Application that the allegations relate instead to the ground of sex). She also alleges reprisal.

2Along with its Response, the respondent has filed a Request to dismiss the Application pursuant to s. 45.1 of the Code on the basis that another proceeding has dealt with the substance of the Application.

3For the reasons set out below, the respondent’s Request is denied.

background

4The respondent is a corporation engaged in meat packing. The applicant worked for the respondent from April 2, 2012 to August 13, 2012 as a general labourer. She alleges that the owner of the respondent repeatedly made disparaging comments about her intelligence in front of both customers and co-workers, linking these to her sex. She alleges that this created a poisoned work environment which she found very stressful, as she felt that she had to tolerate this treatment in order to retain her job.

5The applicant alleges that in July she raised concerns with the owner about the safety of a vacuum packing machine and was met with a rude response that humiliated her before her co-workers and that the owner then began singing a song that suggested she was stupid. She alleges that she confronted him, and that he apologised, indicating that he meant no harm.

6The applicant maintains that following this incident her hours of work were reduced. She feared she would be dismissed. She made an anonymous complaint to the Ministry of Labour about the incident, as well as about the safety of a hamburger press machine.

7In early August, an Occupational Health and Safety Inspector made an inspection of the workplace and issued orders to improve the safety of the machine. Orders were also issued to ensure that a worker health and safety representative be appointed and that the representative conduct monthly inspections of the workplace. The inspector also provided the applicant and the respondent with information from the Ministry regarding the prohibition on reprisals for complaining about occupational health and safety issues.

8The applicant alleges that following the Inspector’s visits she was targeted by co-workers and that the owner threatened that she would lose her job for having complained. She maintains that the stress of this experience caused her to leave work for medical reasons.

9The respondent denies that the owner made comments about the applicant’s intelligence and linked those to her sex. It acknowledges that the owner asked the applicant why she had made an anonymous complaint to the Ministry of Labour. However it says that this was simply an attempt to find out why she had filed formal complaints at a time when the respondent was taking steps voluntarily to address the safety concerns she had raised. The respondent alleges that the applicant’s complaint of reprisal under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, was investigated and rejected. The respondent has not provided any evidence to support the latter allegation.

submissions

10The respondent argues that the substance of this Application is a complaint by the applicant about safety conditions at work and an alleged reprisal for having complained to the Ministry of Labour. From this the respondent argues that the inspection and resulting orders issued by the Occupational Health and Safety Inspector constitute proceedings which have dealt with the substance of the Application. On that basis the respondent requests that the Application be dismissed pursuant to s. 45.1 of the Code.

11The applicant filed a Reply to the Response, but the Reply does not address the Request to Dismiss.

analysis and decision

12Section 45.1 of the Code provides that 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.”

13Assuming without deciding that the process of an inspection and a resulting order by an Inspector under the Occupational Health and Safety Act is a proceeding within the meaning of s. 45.1, the issue here is whether that proceeding appropriately dealt with the substance of this Application.

14The substance of this Application consists of allegations of discrimination based on sex and an allegation of reprisal. As noted above, four orders were issued by the Inspector: two regarding the operation of the hamburger press machine and two regarding the role of a worker representative in monitoring the respondent’s compliance with the Occupational Health and Safety Act. None of the orders deal with or are directly related to the respondent’s alleged discriminatory treatment of the applicant specifically, nor with workplace harassment generally. While the Inspector provided information to both the applicant and the respondent regarding the prohibition on reprisals when a worker raises an occupational health and safety concern, there is no indication that any of those issues were addressed in the form of an order under the Act. The Inspector simply passed on information separately to both parties. There is nothing else to indicate that the Inspector considered the applicant’s human rights concerns. For these reasons I conclude that the Inspector’s orders did not appropriately deal with the substance of this Application.

order

15The respondent’s Request is denied.

16As the parties have expressed a willingness to try mediation, the Registrar is requested to set a date for mediation.