Michelle Kelly v. Inkas Security Services Ltd., 2014 HRTO 789

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Kelly Applicant

-and-

Inkas Security Services Ltd. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: June 3, 2014 Citation: 2014 HRTO 789 Indexed as: Kelly v. Inkas Security Services Ltd.

APPEARANCES

Michelle Kelly, Applicant Bay Ryley, Counsel

Inkas Security Services Ltd., Respondent Self-represented

Introduction

1This Application alleges discrimination with respect to employment because of race, colour, ethnic origin, sex, sexual solicitation, sexual orientation and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

request to dismiss

2The respondent in his Response sought dismissal of the applicant's allegations on the basis they have been appropriately dealt with in a proceeding before the Ontario Labour Relations Board ("OLRB").

3By Case Assessment Direction ("CAD") dated December 12, 2013, the Tribunal directed that a teleconference call hearing would take place to deal with the issue of whether the Application should be dismissed in whole or in part under section 45.1 of the Code.

4The CAD identified the issues to be determined as:

a. Did the section 96 application proceeding at the Ontario Labour Relations Board appropriately deal with the alleged ongoing harassment and discrimination during the applicant's employment? If not, is there any basis for dismissing that part of the Application under section 45.1?

b. Did the section 96 application proceeding appropriately deal with the termination of the applicant's employment? If so, is there any basis for not dismissing that part of the Application under section 45.1?

5Both parties participated in the teleconference call on May 30, 2014.

background

6The applicant alleges harassment and discrimination during the course of her employment at the respondent corporation.

7The applicant was terminated for a second time in March 2013. At the outset of the hearing, the applicant advised, however, that she was not pursuing the issues with respect to the termination of her employment.

8The applicant's Union commenced an OLRB application alleging unfair labour practices against the respondent with respect to the applicant and two other individuals 13 days after the applicant's employment was terminated by the respondent.

9The OLRB application was settled by Minutes of Settlement signed by the respondent's representative, the union representative and the three individuals on whose behalf the applicant was commenced by the union.

submissions by the applicant and respondent

10The respondent submits that this Application should be dismissed because the Minutes of Settlement dealt with the harassment and discrimination allegations, which had been made in the OLRB application, specifically in s. xiii, paras. 105-109 in which details of alleged harassment on March 7, 2013 were raised and the details with respect to her termination on March 12, 2013 were detailed. In the respondent's view, the Minutes of Settlement appropriately dealt with the applicant's termination and her allegations of harassment and discrimination because:

a. the applicant signed the Minutes of Settlement, not the Union;

b. even though the Minutes of Settlement applied to each of the 3 individuals involved in the OLRB application, the applicant was referred to separately in the Minutes of Settlement and received a payment in lieu of pursuing her termination allegations;

c. the harassment issues are intertwined in the Minutes of Settlement resulting from the OLRB proceeding.

11The applicant submits that:

a. Although there was a proceeding, it did not deal with human rights issues, but was about unfair labour practices;

b. The settlement involved other people and was filed by the Union and two other individuals;

c. There was no release in the Minutes of Settlement that releases the employer from liability under any other employment legislation; and

d. It was not the reasonable expectation of the applicant that the Minutes of Settlement released the respondent with respect to the applicant's human rights issues.

the law - section 45.1

12Section 45.1 of the Code gives this Tribunal the authority to dismiss all or part of an application where the substance of the application has been appropriately dealt with in another proceeding.

13In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court applied the common law doctrine of issue estoppel, and although the issue in that case was whether it would be unfair to preclude a public complainant from pursuing a subsequent civil claim because of the findings in the Ontario police officer discipline process, the principles have application to other section 45.1 cases. Since then, the Tribunal has considered Penner in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and held that section 45.1 cannot and should not be interpreted to bar a Code application where do to so would result in an affront to basic principles of fairness. In such circumstances the substance of an application cannot be found to have been "appropriately dealt with".

analysis and decision

14In this case, the Minutes of Settlement begin as follows:

WHEREAS the Union filed application under s. 96 of the Ontario Labour Relations Act, 1995 ("the Act"), on or about March 21, 2013, alleging unfair labour practices by INKAS against Michelle Kelly, Ernesto Clemente-Hernandez, Karla Huber and the Union (Board File No: 3179-12-U);

WHEREAS the Union filed an application under s. 98 of the Act, on or about March 21, 2013, requesting interim relief for the termination of Michelle Kelly from INKAS on or about March 8, 2013 (Board File No: 3178-12-M) [...]

15Only paragraph 9 of the Minutes of Settlement refers specifically to the applicant. It states:

The Employer agrees to rescind the termination of Michelle Kelly on March 8, 2013. The Employer agrees to provide to Michelle Kelly damages in lieu of reinstatement in the amount of $7,000.00, less statutory deductions, to be paid in equal instalments on April 15, 2013, April 30, 2013 and May 15, 2013,.[sic] Payment shall be by cheque with receipt of transaction to her home address. As of April 12, 2013, Michelle Kelly shall be considered permanently laid-off with no recall rights. The Employer shall immediately provide a Record of Employment to Michelle Kelly indicating that the employment ended due to "Layoff with No Recall Rights". Michelle Kelly shall be issued the standard INKAS letter of employment, as outlined at Appendix 3, by April 15, 2013.

16There are no other terms in the Application that apply specifically to the applicant, and there are no releases contained in the Minutes of Settlement. The applicant conceded at the outset of the hearing that the termination issue had been dealt with already and she was not pursuing it.

17I agree with the applicant's submission that on a plain reading of the Minutes of Settlement, the applicant's human rights issues are not dealt with at all, let alone appropriately as required to satisfy s. 45.1 of the Code.

18As in Baylet v. Universal Workers Union, 2009 HRTO 2112, if the human rights complaint was not addressed in the Minutes of Settlement, it cannot be said that the settlement appropriately dealt with the substance of the Application before the Tribunal.

19Therefore, the respondent's request to dismiss the Application is denied.

hearing issues

20The respondent requested that not all the witnesses from the respondent corporation be required to attend the hearing on the same day because of staffing issues. Once the parties have determined who their witnesses will be and the witness statements have been exchanged, the parties can request a teleconference call with the adjudicator assigned to hear the case to deal with scheduling of witnesses.

proper respondent representative

21The applicant took the position after the submissions were made that Mr. Jakubov is not a proper representative of the respondent corporation and does not fit within one of the exemptions allowed by the Law Society of Upper Canada.

22Rule A9.1 of the Social Justice Tribunals Ontario's Common Rules provides:

A9.1 Parties may be self-represented, represented by a person licensed by the Law Society of Upper Canada or by an unlicensed person where permitted by the Law Society Act and its regulations and by-laws.

23An unlicensed person must fall within a category of persons the Law Society of Upper Canada has exempted from its licensing requirements, as follows:

A person who is not licensed, whose license is suspended or who is not in an exempted category will not be permitted to act as a representative in SJTO proceedings.

LICENSED REPRESENTATIVE

A licensed representative is a lawyer or paralegal licensed by the LSUC. A licensed representative must be in good standing with the LSUC and must provide his or her license number to the Tribunal.

There are Rules of Conduct established by the LSUC that apply to lawyers and paralegals. They are available on the website of the LSUC.

UNLICENSED REPRESENTATIVES

An unlicensed person may represent a party in proceedings before the SJTO if that person falls within the specific licensing exemptions established by the LSUC.

A person who is not licensed may be asked by the SJTO to identify the LSUC exemption category to which he or she belongs.

The current exemptions permit the following unlicensed persons, among others, to act as a representative:

· an unpaid friend or neighbour who is not in the business of providing legal services, who does not receive compensation, and who provides legal services in no more than 3 matters in a year

· an unpaid family member who is not in the business of providing legal services and who does not receive compensation

· a member of Provincial Parliament (MPP) or the Constituency assistant working in the MPP's office,

· an employee or volunteer from a trade union or appropriate organization,

· students, volunteers and employees of legal clinics funded through Legal Aid Ontario,

· individuals employed by a single employer, for example, a municipal prosecutor or employee of a corporation appearing on behalf of the corporation

For a complete list of approved exemptions please see the LSUC's website.

A person who is not licensed and who is not exempt from licensing requirements will be not permitted to act as a representative in an SJTO proceeding. This would include:

· a friend, neighbour or family member who expects to/or receives compensation in return for acting as a representative,

· an unpaid friend or neighbour who has already provided legal services in respect of three matters in that year.

order and directions

24The respondent's request for a dismissal of the Application is denied.

25By no later than June 13, 2014, the respondent shall provide to the Tribunal and to the applicant information on how he fits within the exemptions provided by the Law Society of Upper Canada that permit him to act for the respondent if he intends to continue doing so, or will advise by no later than June 20, 2014 who the respondent corporation has retained or will retain to act on its behalf in these proceedings.

26After the exchange of witness statements, the respondent can request that the Tribunal schedule a teleconference with the applicant and the adjudicator assigned to the case to discuss scheduling of witnesses for the hearing.

27I am not seized of this matter.