Champ v. 1321365 Ontario Limited, 2015 HRTO 1035

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shannon Champ Applicant

-and-

1321365 Ontario Limited o/a Eforea Spa at Hilton – The Hilton Suites Toronto/Markham Conference Centre Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: August 5, 2015 Citation: 2015 HRTO 1035 Indexed as: Champ v. 1321365 Ontario Limited

APPEARANCES

Shannon Champ, Applicant Self-represented

1321365 Ontario Limited oa Eforea Spa at Hilton – The Hilton Suites Toronto/Markham Conference Centre, Respondent Meghan Cowan, Counsel

Introduction

1This Application was filed on May 8, 2014, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination in employment on the basis of sex (pregnancy) and disability.

2This Interim Decision follows a preliminary hearing addressing whether or not the Application should be dismissed, in whole or in part, pursuant to s. 45.1 of the Code, as having been appropriately dealt with by another proceeding before the Ministry of Labour (“MOL”).

Background

3The applicant was employed by the respondent as a Lead Registered Massage Therapist (“RMT”). She commenced a second maternity leave with the respondent in July 2012. The narrative in the Application includes the following allegations:

In April 2013, the applicant spoke with the respondent’s General Manager (“GM”) about her return to work. The GM told her that the respondent had undergone a lot of changes and that the interim Lead RMT was doing a fabulous job. As such, the applicant was to return as an RMT/Spa Coordinator instead of as the Lead RMT.

In May 2013, the applicant spoke to the respondent’s Operations Manager (“OM”). The OM told her that she had been away through all of the respondent’s training and transition time, and that the interim Lead RMT had gone through extensive training, was great with all the other RMTs and deserved the position.

The respondent sent the applicant a job description for the RMT/Spa Coordinator position. She was not impressed and felt that she was being punished for having been away on maternity leave. She sent the respondent an email with her concerns on May 16, 2013.

At a meeting on May 29, 2013, the respondent told the applicant that, because she had not been through the training that the interim Lead RMT had been through, she was not able to return as the Lead RMT, and the respondent thought that it would be best if the interim Lead RMT stayed in that role. The applicant stated her concern that the new job description had many duties that previously belonged to another employee, and that it would be uncomfortable and cause tension in the workplace with the other employee still being there. The applicant’s concerns were dismissed and not addressed.

The applicant was also told on May 29, 2013 that if she did not want the RMT/Spa Coordinator position, she could have her old job back. She was told, however, that if she wanted her old job back, it would require at least six to eight months of training, and she would not be paid for the training. She was told that the best option for her, the interim Lead RMT, the other RMTs and the respondent would be for her to become the RMT/Spa Coordinator. The applicant also raised a concern that job duties with the new position would also cause tension with the interim Lead RMT.

The applicant was not comfortable returning to the respondent in either the new role, which would cause too much tension between herself and other employees, or in her old role, as it was very clear that she was not wanted back in that role. The applicant became so stressed by the entire situation that she sought medical treatment. A doctor’s note dated June 24, 2013 was forwarded to the respondent and the respondent advised that it was not satisfied with the doctor’s note. A second doctor’s note dated July 3, 2013 was also forwarded to the respondent, and the respondent again advised that the doctor’s note was not satisfactory. On September 6, 2013, the applicant received a letter terminating her employment from the respondent.

4Elsewhere in the Application, the applicant alleges that she was subjected to discrimination on the basis of sex because, had she not gone on maternity leave, she would have still been the Lead RMT and she would have been provided with paid training on the respondent’s new products, systems and protocols. The applicant also alleges that she was subjected to discrimination on the basis of disability because the respondent did not accept the two doctor’s notes she provided outlining that she was under a doctor’s care and unable to work, and terminated her employment.

5The applicant also indicated in the Application that the facts of the Application were part of a proceeding before the MOL that was still in progress. As such, the Tribunal issued a Notice of Intent to Defer (“NOID”) the Application on June 27, 2014, and sought submissions from the parties on whether or not the Application should be deferred pending completion of the other proceeding.

6In response to the NOID, the respondent submitted that the Tribunal should instead dismiss the Application, pursuant to s. 45.1 of the Code and Rule 22.1 of the Tribunal’s Rules of Procedure, as having been appropriately dealt with by the other proceeding. The respondent submitted that the applicant filed a Claim with the MOL under the Employment Standards Act, 2000 (the “ESA”) raising the same facts that are alleged in the Application. In particular, the applicant alleged in her ESA Claim that she was not reinstated to the position she last held with the respondent when she was scheduled to return from pregnancy leave but was offered another role with the respondent, and that this amounted to constructive dismissal. The respondent submitted that the applicant’s ESA Claim was dismissed in its entirely, and that the Tribunal should dismiss the Application as the ESA proceeding appropriately dealt with the substance of the Application.

7By letter dated August 22, 2014, the Tribunal indicated that a half-day preliminary hearing by conference call would be scheduled to hear submissions on the respondent’s request that the Application be dismissed pursuant to s. 45.1 of the Code.

PRELIMINARY HEARING

8Section 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.

9The respondent submitted that while the applicant was on pregnancy leave the respondent was rebranded, and the respondent met with the applicant and outlined a proposal for promotion. The respondent submitted that it can be seen from the decision of the Employment Standards Officer (the “ESO”) who heard the applicant’s ESA Claim, that the ESO went through all of the evidence related to this, explored the promotion offer and heard submissions from the parties.

10The respondent submitted that the applicant was given time to consider the promotion offer and the respondent was awaiting her answer, but never heard back from her. Instead, on June 17, 2013, the respondent was approached by counsel for the applicant. The respondent submitted that a great deal of subsequent correspondence between the applicant’s counsel and the respondent was presented to the ESO. The respondent submitted that the applicant alleged that she had been constructively dismissed, and the respondent indicated that it was surprised by the allegation and still expecting the applicant to return from maternity leave on July 4, 2013. The respondent submitted that, at no time, was the applicant told she had to accept the proposed promotion in order to return to work.

11The respondent submitted that counsel for the applicant provided a medical note from the applicant’s doctor on June 26, 2013, stating that the applicant was unable to return to work on the return date of July 4 through to July 11, 2013, due to medical reasons. The respondent sought further information from the applicant, including the basis upon which the doctor assessed the applicant’s ability to return to work, any restrictions the applicant had, and any other factors relevant to the applicant’s return to work and/or required accommodation. The respondent submitted that the applicant did not provide any other medical documents as requested, and the parties continued to communicate through their counsel in July and August of 2013.

12The respondent submitted that it took the position that the applicant was absent without leave, but maintained that her previous position was still available to her until September 2013, when there had been no further discussions. On September 6, 2013, two months after the applicant was to return from maternity leave, the respondent wrote to the applicant and advised her that she had abandoned her employment, and that her employment was therefore terminated. The respondent submitted that all of this information was before the ESO.

13Referring to the ESO’s decision, the respondent submitted that the ESO concluded that the applicant’s former position was still available to her under the same terms and conditions, and that there was no evidence before the ESO supporting that the applicant was harassed or forced out. The ESO also found, based on the evidence, that the applicant effectively abandoned her position with the respondent.

14The respondent submitted that every issue raised in the Application was covered and addressed by the ESA Claim, and that both parties appeared in an oral hearing in front of the ESO and submitted documents, and gave oral evidence. The respondent also submitted that the ESO’s decision is quite thorough and dismissed the applicant’s Claim in its entirety.

15The applicant submitted that, on her second maternity leave, the proposed new position for her was not a promotion, but a demotion. She maintained that she was advised that her old job would be staying with the interim Lead RMT, and that she was to take the new position. The respondent told her that the new position was best for her, best for the interim Lead RMT and best for the respondent.

16The applicant also submitted that she wanted her old job back but was told that it would take six to eight months of unpaid training, and taking her job away from the interim Lead RMT would not be fair to her.

17The applicant submitted that her doctor’s note said that she was under her doctor’s care and that she did not need to provide more information. She submitted that there were no modified duties because the issue was stress and returning to work in that environment. The applicant submitted that she did not get an appointment with a psychologist until after she received a letter from the respondent saying that she had abandoned her position. She submitted that the ESO decision states that she did not resign. She submitted that she continued seeing her doctor and the doctor’s notes provided were sufficient.

ANALYSIS AND DECISION

18The Tribunal has found that an ESO investigation is a “proceeding” for the purposes of s. 45.1 of the Code. See Reid v. Advantage Personnel Limited, 2012 HRTO 1742 and Carrier v. National Capital Region YMCA-YWCA, 2014 HRTO 1106 at para. 10 (“Carrier”). Accordingly, the issue in the present case is whether the ESO appropriately dealt with the substance of the Application.

19In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, the Supreme Court of Canada dealt with the interpretation of s. 27(1)(f) of the British Columbia Human Rights Code which is nearly identical to s. 45.1 of the Code. In Figliola, the Court described the appropriate analysis a Tribunal should undertake when assessing whether the substance of an application has been appropriately dealt with in another proceeding, as follows, at para. 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…

20The 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 para. 25 and Carrier at para. 12.

21In Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, the Tribunal applied the Supreme Court of Canada’s decision in Penner v. Niagara (Regional Polices Services Board), 2013 SCC 19. The Tribunal found that, in deciding whether another proceeding appropriately dealt with the substance of an application pursuant to s. 45.1 of the Code, the Tribunal must consider not only whether the issue 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.

22Section 53 of the ESA provides that, upon conclusion of an employee’s pregnancy or parental leave, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or a comparable position, if it does not. Pursuant to s. 104(1) of the ESA, the remedies available under the ESA for a violation of s. 53 include compensation for any loss incurred as a result of the contravention and/or reinstatement, which are similar to the remedies available under the Code.

23In the present case, I find that the ESA proceeding appropriately dealt with the substance of the applicant’s allegation that she was subjected to discrimination on the basis of sex (pregnancy) when she was ready to return to work at the end of her second maternity leave.

24In the Application, the applicant alleged that, had she not gone on maternity leave, she would have still been in her previous position, but that the respondent used her pregnancy as a way to “push [her] out”. She also alleged that the respondent did not want her back in her previous role, and submitted that the respondent proposed a new position for her that was a demotion. Similarly, in the ESA claim, the applicant alleged that she was not reinstated to the position she last held with the respondent when she was due to return from her pregnancy/parental leave. Rather, she was offered another position. She contended that it was not the same position and, therefore, she was constructively dismissed. It is clear from a review of the ESO’s decision that these allegations in the Application and in the applicant’s ESA Claim are based on the same facts and are essentially the same allegations.

25It is also clear from a review of the ESO’s decision that the parties provided the ESO with considerable documentary and oral evidence concerning these allegations. After considering the evidence, the ESO found that the applicant’s previous position with the respondent still existed and, by the applicant’s own testimony in her evidence in chief and in her rebuttal, she was offered reinstatement to her previous position. The ESO found no violation of the provisions of the ESA concerning reinstatement following pregnancy and parental leave.

26The ESO also addressed the applicant’s evidence that she felt that she was being “pushed out”, that returning to her former position would create a toxic, unhealthy and uncomfortable environment, and that the respondent’s proposal of an alternative position constituted constructive dismissal. The ESO found that it was clear that the respondent proposed a new position, but that the applicant’s former position was still available to her under the same terms and conditions previously enjoyed, and with the same hours and rate of pay. The ESO found that the applicant was not constructively dismissed. The ESO also found that the evidence did not support that the applicant was harassed or forced out, noting that the applicant gave evidence that she felt stressed and anxious even before she went on leave. As such, I find that the ESA proceeding addressed essentially the same issues that would be required to be addressed under the Code if this allegation were to proceed before the Tribunal.

27In the circumstances, I find that the substance of the applicant’s allegation that she was subjected to discrimination on the basis of sex (pregnancy) when she was ready to return to work with the respondent after her second maternity leave was appropriately dealt with by the ESA proceeding. Accordingly, this allegation is dismissed.

28With respect to the applicant’s allegation that she was subjected to discrimination on the basis of disability because the respondent did not accept two doctor’s notes she provided, and terminated her employment, I do not find that the substance of this allegation was appropriately dealt with by the ESA proceeding. I note that the ESO ultimately determined that the applicant abandoned her position; however, the issue of discrimination on the basis of disability was not before the ESO. For example, the ESO’s decision did not address whether the applicant had a disability-related need to be absent from work, or whether the respondent had a duty to accommodate her short of undue hardship and, if so, did so within the meaning of the Code. In the circumstances, the applicant’s allegation that she was subjected to discrimination on the basis of disability is not dismissed.

CONCLUSION

29The allegation that the applicant was subjected to discrimination on the basis of sex (pregnancy) when she was ready to return to work with the respondent after her maternity leave is dismissed, pursuant to s. 45.1 of the Code, as having been appropriately dealt with.

30The allegation that the applicant was subjected to discrimination on the basis of disability is not dismissed.

31As the respondent has not filed a Response (Form 2) to the Application, the respondent is directed to file a Response to the remaining allegation in the Application within 35 days of the date of this Interim Decision.

32I am not seized.