Nathalie Carrier v. National Capital Region YMCA-YWCA, 2014 HRTO 1106

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nathalie Carrier

Applicant

-and-

National Capital Region YMCA-YWCA

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: July 28, 2014

Citation: 2014 HRTO 1106

Indexed as: Carrier v. National Capital Region YMCA-YWCA

WRITTEN SUBMISSIONS

Nathalie Carrier, Applicant

Self-represented

National Capital Region YMCA-YWCA, Respondent

Caroline Richard, Counsel

1This is an Application filed on October 9, 2013 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 race, ancestry, disability, sex, gender identity, family status and reprisal.

Background

2The applicant alleges that she was subject to various forms of harassment and discrimination while employed by the respondent. The applicant states that she was experiencing a difficult pregnancy in December 2010 and her doctor advised her to take medical leave prior to her expected due date. The applicant alleges that she continued to work, despite this advice, in order to complete her probationary period of employment because her supervisor indicated that she may have to repeat probation when she returned after her parental leave. Ultimately, a more senior manager intervened and granted the applicant permanent status. The applicant subsequently began her medical leave and then proceeded to pregnancy/parental leave. The applicant states that the respondent refused to allow her to discontinue her benefits during her leave of absence and she was required to repay a significant sum for late benefits payments when she returned to work. The applicant alleges that when she returned to work in March 2012 her supervisor retaliated against her for taking leave by treating her like a new employee, having a colleague train her regarding administrative duties, demoting her and changing her duties.

3The applicant alleged that following her return to work the respondent failed to accommodate a disability arising out of her pregnancy and refused her request for a temporary change to her schedule while her children adjusted to daycare. The applicant also alleged that her supervisor made inappropriate comments related to co-workers’ and employees’ race, colour, ethnicity and disabilities. The applicant identifies herself as a Franco-Ontarian and states that her supervisor made disparaging comments about French language rights and French speaking people.

4The respondent terminated the applicant’s employment on October 9, 2012. The applicant alleges that the termination of her employment was a reprisal for standing up for her rights and for the rights of other employees. The applicant states that, on or about September 19, 2012, she confronted her supervisor regarding his discrimination against her because of her maternity leave and was also bullying other employees and the supervisor asked her for a letter confirming that he had not harassed her. The applicant states that, although she initially agreed, she did not produce the letter and was dismissed two weeks later.

5The respondent filed a Response in which it denied the applicant’s allegations and also requested dismissal of the Application pursuant to section 45.1 of the Code and for delay. The respondent submitted that the applicant filed a complaint under the Employment Standards Act, 2000 (the “ESA”) in which she alleged that the termination of her employment was a reprisal for taking pregnancy and parental leave. The respondent submitted that an Employment Standards Officer (“ESO”) employed with the Ministry of Labour (“MOL”) concluded that the respondent dismissed the applicant for performance issues and that any alterations to her work were standard practice for the respondent where it was re-orienting an employee returning from an extended leave. The respondent also submitted that the Application includes allegations regarding events that occurred more than one year before the filing date of the Application. The respondent submitted that these incidents do not form a series of events with any timely alleged incident and that the applicant has not provided a reasonable justification for the delay in filing the Application.

Preliminary Hearing

6By Case Assessment Direction, dated March 17, 2014, the Tribunal directed that a preliminary hearing be held to determine whether the Application should be dismissed, in whole or part, because another proceeding has appropriately dealt with the substance of the Application, pursuant to section 45.1 of the Code and whether some of the allegations should be dismissed because of delay. The Tribunal held the preliminary hearing by teleconference on May 21, 2014.

Section 45.1

7Section 45.1 of the Code states:

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.

8The respondent submitted that the applicant’s complaint to the MOL contained the same allegations as this Application. The respondent noted that an ESO investigated the complaint, and found that the respondent did not engage in a reprisal under section 74 of the ESA against the applicant for taking pregnancy and parental leave. The respondent submitted that the ESO found that the changes made to the applicant’s work upon return from leave were to re-orient and train the applicant and did not amount to a penalty for taking leave. The respondent also submitted that the ESO found that the termination of the applicant’s employment was also not a reprisal under section 74 of the ESA. Rather, the ESO found that the respondent terminated the applicant’s employment for performance due to performance issues. The respondent submitted that the applicant had the opportunity to respond to the respondent’s case during the ESO’s investigation and make written and oral submissions. The Tribunal submitted that the appropriate forum to review the ESO’s decision was by an appeal to the Ontario Labour Relations Board and that the issue cannot be re-litigated before the Tribunal.

9The applicant submitted that the ESO did not deal with the allegations of harassment and discrimination set out in the application. For example, the applicant submitted that the ESO did not deal with her allegations of discrimination because of disability, family status and reprisal. In particular, the applicant submitted that the ESO did not address the allegation that her dismissal was a reprisal under section 8 of the Code for complaining about harassment. The applicant also submitted that the ESO process was slow and that the ESO did not consider documents that she offered or evaluate witness. The applicant also submitted that her interactions with the ESO were difficult. The applicant explained that after she complained to the ESO she received legal advice that her complaint was in the wrong forum and she chose not to pursue an appeal to the OLRB.

Analysis and Decision

10The Tribunal has found that an ESO investigation is a “proceeding” for the purposes of section 45.1 of the Code. See, Reid v. Advantage Personnel Limited, 2012 HRTO 1742; Pinheiro v. Maritz Canada, 2012 HRTO 540; Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443; and Cristiano v. Grand National Apparel Inc., 2012 HRTO 991. Anti-discriminatory legislation is subject to the concurrent and overlapping jurisdiction of an array of administrative decision-makers. See: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; and Prelogar v. Fine Line Imports Inc., 2011 HRTO 1458. Accordingly, the issue is whether the ESO “appropriately dealt with the substance of the Application.”

11The Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, dealt with the interpretation of section 27(1)(f) of the British Columbia Human Rights Code (the “B.C. Code”), which is nearly identical to section 45.1 of the Code. In that decision, the Court described the analysis a Tribunal should undertake when assessing whether the substance of a complaint has been appropriately dealt with in another proceeding, as follows, at paragraph 37:

“…whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process mirrored the one the Tribunal prefers or uses itself…”.

12The Tribunal has found that the analysis adopted in Figliola, above, applies in Ontario and binds the Tribunal. See: Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at paragraph 25. In Paterno v. Salvation Army, 2011 HRTO 2298, the Tribunal stated as follows:

This Tribunal has emphasized throughout its jurisprudence on s.45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing relitigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal found that the analysis applied by the Special Education Tribunal in an appeal under the Education Act, R.S.O, 1990, c.E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qiu v. Neilson, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s.45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an application or part of an application to succeed, the application or part must be dismissed. (Emphasis added)

13In Claybourn v. Toronto Police Services Board (“Claybourn”), 2013 HRTO 1298, the Tribunal applied the Supreme Court’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 and found that in deciding whether another proceeding appropriately dealt with the substance of a human rights claim pursuant to section 45.1, the Tribunal must consider not only whether the issue in before the Tribunal was decided in another proceeding, but also whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding, taking into account the nature of the other proceeding, the applicant’s stake in it, and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights.

14The Tribunal has noted that the pregnancy and parental leave provisions of the ESA, along with section 74 of the ESA are anti-discrimination measures, providing protection from discrimination because of pregnancy, i.e., sex, for women in their workplaces. See, for example, Chen v. Harris Rebar, 2009 HRTO 227 and Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443. Pursuant to section 104(1) of the ESA, the remedies available under the ESA for violation of the pregnancy and parental leave provision include compensation for any loss incurred as a result of the contravention and/or reinstatement to employment, which are similar to the remedies available under the Code.

15In my view, the ESO appropriately dealt with the applicant’s allegations that the respondent discriminated against her for taking pregnancy and parental leave and with the issue of the termination of her employment. On the face of the ESO’s decision, it is clear that alleged facts on which the applicant relied in her complaint under the ESA are the same as those she alleges in this Application, including that she complained to her supervisor that she believed she was being penalized for taking pregnancy/parental leave. The ESO specifically found that the changes to the applicant’s duties and training that the respondent implemented upon the applicant’s return from leave amounted to appropriate re-orientation and did not penalize the applicant for taking pregnancy/parental leave. The ESO found that the applicant was not dismissed because she exercised her entitlement to pregnancy and parental leave, but because of “specific job performance issues which included disruptive behaviour, unpredictable conduct and a perceived poor fit within the organization by the employer”.

16The applicant’s allegations in this Application to the effect that the respondent discriminated against her because she took pregnancy and parental leave after she returned to work are essentially the same allegations she made to the MOL. The ESO’s finding that the respondent’s actions were not retaliatory and were efforts to reintegrate the applicant makes it impossible for this aspect of the Application to succeed. Consequently, I find that the ESO investigation and findings appropriately dealt with the applicant’s allegations that the respondent discriminated against her because she took pregnancy and parental leave, i.e., because of sex.

17In this Application, the applicant does not allege that the respondent terminated her employment because she exercised her right to take pregnancy and parental leave. Rather, she takes the position that her dismissal was a reprisal, under section 8 of the Code, for confronting her supervisor regarding his discriminatory conduct. This issue was not before the ESO, but in my view the ESO’s finding that the respondent dismissed the applicant for performance issues makes it impossible for the applicant’s reprisal claim under the Code to succeed unless the Tribunal is to contradict the ESO’s findings that the respondent dismissed the applicant because of performance issues. The Tribunal has no authority to review ESO investigations. The proper review mechanism for ESO investigations is an appeal to the OLRB, but the applicant chose not to pursue this option.

18As noted above, the ESA prohibits discrimination with respect to their employment because of pregnancy and provides for comprehensive remedies for violations of this prohibition, as does the Code. The ESO investigated the applicant’s pregnancy related claims and concluded they were unfounded. The applicant was entitled to appeal this decision to the OLRB, but chose not to exercise this right. In these circumstances, it would not in my view be within the reasonable expectation of the parties that the applicant would be able to re-litigate her allegations of post leave discrimination because she took pregnancy and parental leave or that her dismissal violated her rights before this Tribunal. I find therefore that it would not be unfair to exercise my discretion under section 45.1. Consequently, I find that the ESO’s proceeding appropriately dealt with these issues. Accordingly, the allegations the respondent discriminated against the applicant because she took pregnancy and parental leave after she returned to work and that the termination of the applicant’s employment was contrary to the Code are dismissed.

19I agree with the applicant that the ESO did not deal with the applicant’s other allegations in this Application, which include discrimination because of disability, failure to accommodate disability and family status, and harassment because of ancestry. However, for the reasons set out below, I have found that these allegations must be dismissed for delay.

Delay

Section 34 (1) and (2) of the Code reads as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

20The applicant argued that her allegations were a series of incidents and therefore not untimely, pursuant to section 34(1)(b) of the Code. However, the applicant filed the Application on October 9, 2013, exactly one year after the termination of her employment. Consequently, the only incident alleged to have occurred within one year of the filing date of the Application was the termination of her employment. As discussed above, I have found that the allegation regarding the applicant’s dismissal cannot succeed before this Tribunal and dismissed it pursuant to section 45.1 of the Code.

21In Chappell v. Securitas Canada Limited, 2012 HRTO 874 the Tribunal held that an allegation that the Tribunal had dismissed following a summary hearing because it had no reasonable prospect of success “cannot form part of a series of incidents” within the meaning of section 34(1). This reasoning has also been applied to circumstances where the Tribunal has dismissed an allegation pursuant to section 45.1. The outcome of these decisions has varied, however, depending on the circumstances under which section 45.1 was applied.

22For example, in Edwards v. Heydary Hamilton Professional Corporation, 2012 HRTO 1864, an ESO had concluded that the applicant had been subject to a reprisal (termination of employment) for taking pregnancy and parental leave under the ESA and the OLRB upheld the ESO’s finding. The Tribunal dismissed the applicant’s pregnancy related discrimination allegation because the ESO dealt with the substance of the issue and she was not entitled to re-litigate her claim to seek further remedies from the Tribunal. The Tribunal rejected the respondent’s argument, based on the reasoning in Chappell, above, that the applicant’s pregnancy related allegations could not form part of a series under section 34(1)(b) on the issue of delay because they had been dismissed under section 45.1. The Tribunal noted that the allegations had been dismissed to prevent re-litigation of the applicant’s vindicated claim, not for lack of merit, and therefore Chappell did not apply.

23In Bhol v. Coca-Cola Refreshments Canada Company, 2014 HRTO 96, the applicant alleged that the termination of his employment was the final incident of a series of discriminatory incident. The termination of employment was the only incident alleged to have occurred within one year of filing date of the Application. The applicant’s dismissal, however, had been litigated before a labour arbitrator who concluded that the dismissal was proper and dismissed the applicant’s grievance. The Tribunal dismissed the allegation regarding the applicant’s dismissal, pursuant to section 45.1, as the arbitrator had addressed this issue and to allow it to proceed would result in re-litigation. In these circumstances, the Tribunal found that the termination of the applicant’s employment could not form part of a series, pursuant to the reasoning in Chappell, above. As there was no timely incident, the Tribunal found that the applicant did not establish a series of incidents for the purposes of section 34(1)(b).

24I agree with the decisions in both Edwards and Bohl, above, and in my view, whether an allegation dismissed under section 45.1 may form part of series under section 34(1)(b) depends on the circumstances of the case and the nature of the decision in the other proceeding. The circumstances of this Application are similar to those in Bohl. In both cases, the termination of the applicants’ employment was found to be appropriate in another forum and they were prevented from re-litigating this issue before this Tribunal, pursuant to section 45.1. In my view, where another proceeding has appropriately dealt with the substance of an application, or part of it, and the nature of the previous decision is that the applicant’s allegation(s) have no merit or cannot succeed before the Tribunal, then that allegation cannot form part of a series for the purposes of section 34(1)(b). Consequently, I find that the termination of the applicant’s employment does not form part of a series.

25None of the remaining incidents in the purported series are alleged to have occurred within one year of the filing date of the Application and are therefore outside of the one year limitation period established in section 34(1). The applicant stated that she received legal advice at some point during the ESO investigation and concluded that she was in the wrong forum. The ESO’s decision is dated August 29, 2013 and she filed the Application on October 9, 2013. The applicant clearly believed that the termination of her employment and the respondent’s action prior to her dismissal violated her rights. In these circumstances, the applicant had every reason to make inquiries about how to enforce her rights. She pursued a claim under the ESA, but did not file this Application until after the ESO investigation concluded and after she belatedly determined that the Tribunal was the proper forum for her complaint. In my view the applicant did not act with due diligence regarding her Code rights and I cannot find the delay in filing the Application was incurred in good faith. The incidents alleged to have occurred before October 9, 2012 are dismissed for delay.

26The Application is dismissed.