Sharma v. Common Collection Agency Inc., 2015 HRTO 1024

Human Rights Tribunal of Ontario

BETWEEN:

Monika Sharma Applicant

-and-

Common Collection Agency Inc. Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume Date: July 31, 2015 Citation: 2015 HRTO 1024 Indexed as: Sharma v. Common Collection Agency Inc.

APPEARANCES

Monika Sharma, Applicant Self-represented

Common Collection Agency Inc., Respondent Alex Tershakowec, Student-at-law

INTRODUCTION

1This is an Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal on the basis of family status with respect to employment.

2The applicant works for a collection agency. She alleges that the respondent failed to accommodate her childcare needs; she was improperly disciplined for being unable to work the late shift because of childcare needs; and that she experienced unauthorized wage deductions which were also related to her inability to work the late shift.

3The applicant filed a claim pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”), with the Ministry of Labour (“MOL”) in relation to the unauthorized wage deductions and also alleged reprisal for her asserting her rights under the ESA. On February 26, 2014, the MOL released its decision in favour of the applicant, in part, with respect to unauthorized deductions but also dismissing her reprisal claim.

4This Decision deals with the request by the respondent to dismiss this Application pursuant to section 45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with under the ESA. The applicant opposes dismissal. She submits that the substance of her human rights Application was not appropriately dealt with under the ESA.

SECTION 45.1

5Section 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.

6The Tribunal has held that, in determining whether an Application ought to be dismissed pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another “proceeding”; and (2) if so, whether it “appropriately dealt with” the substance of the Application”.

7There is no question that the decision of the MOL under the ESA is a proceeding. The ESA proceeding did not, however, deal with the substance of the human rights Application.

8The applicant alleges discrimination on the basis of family status and reprisal for claiming or enforcing her rights under the Code. There is clearly some overlap in the facts between the two proceedings with respect to the unauthorized deduction of wages. However, the human rights Application is broader and includes allegations that the respondent failed to accommodate the applicant’s childcare needs. The applicant also alleges that she was improperly disciplined because of her inability to work the late shift. The MOL makes reference to these “accommodation” issues and indicates that they are not covered under the ESA.

9The reprisal allegation under the Code was also not dealt with by the MOL. The resprisal issue before the MOL was exclusively related to the reprisal provision under the ESA.

10Without commenting on the likelihood that the applicant will be successful, I find that the Application should not be dismissed at this stage because the human rights allegations have not been addressed through the ESA proceeding. The presiding adjudicator will determine to what extent findings of fact by the MOL are relevant to the hearing of this Application.

11Accordingly, the respondent’s request to dismiss this Application is denied and the Application will continue to the next stage.

Directions

12The Tribunal issues the following directions:

• The request to dismiss the Application is denied;
• The Registrar is requested to schedule one day to hear this case, unless the parties opt for mediation;
• If the parties wish to engage in mediation, they will advise the Registrar within 10 days of the date of this Interim Decision;