HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Allison Hahnfeld
Applicant
-and-
Nacora Insurance Brokers Ltd. and Kuehne & Nagel Ltd.
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin Date: December 24, 2015 Citation: 2015 HRTO 1730 Indexed as: Hahnfeld v. Nacora Insurance Brokers Ltd.
APPEARANCES
Allison Hahnfeld, Applicant Kate Sellar, Counsel
Nacora Insurance Broker and Kuehne & Nagel Ltd., Respondents Daniel Mayer, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment because of sex and family status, as well as reprisal. In particular, the applicant alleges that she was discriminated against after she announced she was pregnant by having duties removed from her, following her return to work after her maternity leave including by not being accommodated in respect of her need to express milk, and in being terminated from her employment.
2By Interim Decision 2015 HRTO 186, the Tribunal determined that it would convene a preliminary hearing to address a Request for Order During Proceedings filed by the Respondents seeking the dismissal of the Application pursuant to s. 45.1 of the Code, or in the alternative, the removal of a number of respondents. In their Request, the respondents had submitted that a decision of an employment standards officer (“ESO”) had appropriately dealt with the substance of the Application.
3In the submissions filed prior to the preliminary hearing, the issues were narrowed. The applicant consented to the removal of the personal respondents. In addition, the applicant conceded that certain of her allegations relating to the preservation of her position upon return to work, her allegations regarding access to a raise and her subsequent termination had been appropriately dealt with and should be dismissed. By contrast, the applicant stated the following three allegations were not before or within the jurisdiction of the ESO:
- Allegations relating to the change of duties once the applicant advised she was pregnant (but before she went on leave);
- The failure to accommodate her need to express milk upon return from leave; and
- The issues regarding the accommodation of her family status needs (i.e. relating to the care of her sick child).
4On May 27, 2015, a hearing was held by conference call to hear submissions from the parties.
5During the hearing, on consent of the parties, the Tribunal removed Darryl Wolfe, David Schleifer, Natasha Sheilds, Andrea Joseph, Vini DiCarlo, Dana Pickles and Mirko Rodic as parties. Further, the parties agreed that the issue of whether or not Kuehne & Nagel Ltd. is a proper party would remain outstanding pending the parties’ attempt to resolve the same. As a result, I have not addressed that part of the respondents’ Request.
6Following the hearing, additional submissions were filed by the parties on the jurisdiction of the ESO to consider the applicant’s allegations arising before her maternity leave.
7After considering all of the material filed and the submissions made, I have determined that the outstanding allegations identified by the applicant have not appropriately dealt with by the ESO and that these issues will continue in the Tribunal’s process. My reasons follow.
Background and Procedural History
8The Application arises out of the applicant’s employment and termination of her employment with the respondent Nacora. The applicant states in the Application that she was employed by the respondent Nacora from July 23, 2010 to April 25, 2014. The respondent, Kuehne & Nagel, is described by the applicant as the owner of Nacora and responsible for its human resources department.
9The Application alleges that after the applicant announced her pregnancy, duties were removed from her. The applicant also alleges that after she returned to work, she learned that a new hire would be assuming duties she formerly held; was denied a raise because of her maternity leave; and was terminated contrary to the Code. The applicant also alleges that during the period she was employed after her maternity leave, the respondents failed to provide her with reasonable accommodations in order to allow her to pump breast milk and she heard complaints about her need to be absent from work when she stayed home to take care of her sick child.
10In the Application the applicant identified that she had also filed a complaint at the Ministry of Labour which had not been concluded. The applicant filed a copy of a complaint under the Employment Standards Act, 2000 (“ESA”). The complaint arose from what appeared to be substantially the same factual narrative as that set out in the Application.
11The Tribunal sought submissions on deferral. The respondent supported deferral and the applicant was opposed, in part because she asserted that the Ministry of Labour advised her that a significant portion of her complaint fell outside the Ministry’s jurisdiction – that is the provision of inadequate accommodations for pumping breast milk.
12By Interim Decision, 2014 HRTO 1161, the Tribunal deferred the Application pending the conclusion of the ESA process.
13On December 15, 2014, the Employment Standards Officer (“ESO”) issued a decision on the complaint. The ESO stated that the standards at issue were unpaid wages, termination pay, severance pay and reprisal. The ESO rejected the applicant’s claims in respect of unpaid wages, termination pay and severance pay but allowed the claim of reprisal. The officer awarded $13,349.35 for lost earnings and $1000.00 in general damages for emotional ‘pain and suffering’.
14Following the issuance of the ESO’s decision, the applicant sought reactivation of the Application and the Respondent filed the Request for Order During Proceedings on s. 45.1.
15By Interim Decision, 2015 HRTO 186, the Tribunal granted reactivation and stated that the Tribunal would convene a half day preliminary hearing to address the respondents’ Request.
Analysis and Decision
16Section 45.1 of the Code provides the Tribunal with a discretion to dismiss an application where another proceeding has appropriately dealt with the substance:
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.
17Section 45.1 is generally considered in two parts: was there another proceeding; and if so, did it appropriately deal with the substance of the application.
18In this case, the parties agreed and I accept that the complaint before and determination by the employment standards officer was a proceeding. Where the dispute lies is whether or not the ESO proceeding dealt with the entirety of the substance of the Application.
19I begin with a closer look at the ESO decision.
The ESO Decision
20The ESO decision includes a summary of the facts and the officer’s analysis of each of the three issues. For the purposes of this Interim Decision the relevant sections are those pertaining to reprisal. Under the facts section, the ESO refers to the applicant stating that she was demoted to the role of assistant shortly after she announced her pregnancy and the employer’s, in this proceeding Nacora’s, contrary evidence. The ESO makes no reference at all to the other two issues – the accommodation issue related to expressing breast milk or the applicant’s allegations arising out of the care of her sick child.
21The ESO addresses the issue of reprisal as follows:
Section 18.1.2 of the Act’s Policy and Interpretation Manual states that an employee taking a pregnancy leave has a right to be reinstated to the same position she held prior to going on leave. If that position no longer exists, the employee must be reinstated to a comparable position.
The employer’s evidence, along with witness evidence indicated that the duties performed by the claimant prior to her pregnancy leave continued to be performed after her return and after her lay off. Witness evidence indicates that actions were already taken against the claimant after she announced her pregnancy. Although the evidence indicates some variance in duties performed by the claimant and the new employee, it is clear that most of the claimant’s original duties continued to be performed by the replacement and all were performed by five other employees, some of whom had less seniority. The employer failed to provide evidence to show, if the original position was in fact redundant, why it was the claimant who was selected for layoff rather than other employees, particularly an employee who was hired ostensibly on a temporary basis during her leave. The employer offered performance issues as an explanation but the minimal evidence to support this claim and the total absence of progressive discipline negates this submission.
Section 74(1) of the Act states:
No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,
(a) because the employee,
(iv) exercises or attempts to exercise a right under the Act.
Pursuant to Section 74(2) of the Act, the burden of proof that an employer did not contravene the Act lies with the employer. I find that the employer has failed to meet this requirement.
(emphasis added)
22As a remedy, the officer orders that the applicant be paid $13,349.35 for lost earnings and $1000.00 in general damages for emotional pain and suffering. In addressing the latter remedy, the ESO states:
Section 22.1.7 of the Manual also provides for emotional ‘pain and suffering’ damages. The claimant states that being dismissed after working diligently for nearly four years was very upsetting and emotionally exhausting, particularly since she now had an infant; it left her profoundly disillusioned about her expectations of fairness in the workplace. In the circumstances, I order an amount of $1000.00.00 [sic] in general damages for emotional ‘pain and suffering’.
(emphasis added)
The Parties’ Submissions
23For the most part, the parties were in agreement on the general legal principles. Both parties made reference to the decisions in British Columbia (Worker’s Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”), which have informed the Tribunal’s approach to s. 45.1 in recent years.
24In Clayborn v. Toronto Police Services Board, 2013 HRTO 1298, at para. 72, the Tribunal summarized the test in Figliola as follows:
The majority in Figliola articulated a three-part test in order to determine whether the substance of an application before a human rights tribunal has already been “appropriately dealt with” in another proceeding. The three parts to this test were articulated as being: (1) whether there was concurrent jurisdiction to decide human rights issues; (2) whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and (3) 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 procedurally mirrored the one the Tribunal prefers or uses itself: see Figliola at para. 37.
25In Penner, in the context of applying the doctrine of issue estoppel, the Supreme Court of Canada held that adjudicators also have the discretion to refuse to dismiss a proceeding where to do so would be unfair to the claimant.
26In this case, the parties’ submissions were primarily focussed on whether or not the ESO had the jurisdiction to decide the human rights issues and whether or not the ESO actually determined the issues, albeit the parties framed the issues differently.
27The respondents submit that the ESO had concurrent jurisdiction to and did deal with the issues in the Application. The respondents urge the Tribunal to take a “broad” approach to defining the issues in the Application and before the ESO. In this case, the respondents submit that the Application is about whether the applicant was treated differently when she announced her pregnancy, when she returned to work and when she was terminated. The respondents submit that this is also the substance of the complaint before the ESO and that these issues were addressed in that decision.
28The respondents submit that the three specific issues identified by the applicant as outstanding have been appropriately dealt with in the ESA proceeding. With respect to the first issue, the respondents highlight that the ESO makes express reference to the applicant’s evidence that she was demoted shortly after she announced her pregnancy and the respondents’ evidence challenging that point. In the decision on the reprisal, the respondents submit that the ESO again refers to there being “witness evidence” that indicates that actions were already taken against the “claimant” (i.e. applicant) after she announced her pregnancy (see the highlighted statement cited above from the decision). The respondents argue that the applicant had an opportunity to raise this issue and the ESO “dealt” with the issue by referring to s. 74(2) of the ESA and concluding that the employer (the respondent Nacora in this proceeding) failed to meet the requirement that it had not contravened the Act.
29With respect to the two remaining issues, the respondents submit that there is reference in the underlying ESA complaint to at least one of these issues. Further, the respondents submit that the ESO disposed of these issues when making his award of damages. The respondents submit that by making reference to the applicant being left profoundly disillusioned about her expectations of “fairness in the workplace” it is clear that all allegations were in the “mind” of the officer in awarding pain and suffering damages. Similarly, while the ESO decision does not refer to the issue of “expressing breast milk”, the reference to the applicant having an infant in the same paragraph in the decision, demonstrates that the ESO had “family status in mind” when awarding the damages.
30The respondents argue that following Penner, it would not be unfair to dismiss the Application given the general approach taken by the ESO in awarding damages.
31In support of their submissions, the respondents also refer to a number of decisions of the Tribunal. The respondents submit that there are two “trends” of cases in the Tribunal’s jurisprudence dealing with s. 45.1 – one where issues are defined broadly, (see, for example, Hendersen v. Nutech Fire Protection, 2010 HRTO 2153 (“Hendersen”) and Shi v. Holcim, 2012 HRTO 416) and a second line of cases where the issues are defined more narrowly or are parsed out in the decision (see Edwards v. Heydary Hamilton Professional Corporation, 2012 HRTO 1864 and Vonella v. Blake Jarett, 2011 HRTO 113). The respondents submit that in the former cases, even where an issue is not expressly referenced in the ESO decision, the Tribunal has dismissed the case where it concludes that the central issue has been considered and addressed (see, for example, Hendersen, where the Tribunal dismissed an application in its entirety based on an ESO decision even though the ESO decision did not explicitly consider an allegation of discrimination based on marital status).
32In contrast, the applicant submits that the three issues in question have not been dealt with in the ESO decision. In her written submissions, the applicant submits that all three of the issues were not before the ESO and there is no overlapping jurisdiction in relation to those issues. During the hearing, the applicant modified her position somewhat at least on the issue of the demotion. The applicant submits that arguably there was jurisdiction for the ESO to address the issue of the demotion but it was not addressed either in the decision on liability or remedy. As for the other two issues, the applicant emphasizes that the applicant was unrepresented in the employment standards process and hence told “a story” which included all of her allegations, but that the issues of family status and accommodation were neither referred to nor addressed in the decision. The applicant submits that to presume that the reference to “fairness” was representative of addressing “all” that was unfair is a “stretch” at best.
Were all issues appropriately dealt with by the ESO?
33There appeared to be no dispute that the Code Application included the following allegations: that the applicant had duties removed from her prior to her leave; that a co-worker complained about her missing work when she was caring for her child and the respondents failed to accommodate her family status needs; and that the respondents failed to accommodate the applicant’s need to express milk. Where the parties differed was on the approach to be taken to defining the substance of the Code Application. As indicated above, the respondent framed the issues broadly, whereas the applicant submitted that the issues raised in the Code Application were distinct allegations that had not been considered and addressed by the ESO.
34I accept that there are some cases where the Tribunal has broadly defined the substance of the Application before the Tribunal and where what is defined as the central issue has been addressed in an ESO decision, has dismissed the Application even in respect of allegations in an application which were not mentioned in the ESO decision in question. However, as acknowledged by the parties, this approach has not been consistently followed and there are other cases where the Tribunal has parsed out the issues in the Application and has dismissed only those parts of the Application which have been determined elsewhere and has allowed other parts which had not been dealt with to proceed in the Tribunal’s process (see, for example, Edwards v. Heydary Hamilton Professional Corporation, 2012 HRTO 1864). Indeed, this latter approach is consistent with the statutory language which permits the Tribunal to exercise its discretion to dismiss an application “in whole or in part”.
35In any event, in considering whether to dismiss an application under s. 45.1, the Tribunal is exercising a discretion that in my view is case specific. The issue of whether or not a decision made under the ESA appropriately dealt with the substance of the Application has to be determined after a careful consideration of the specific Application and ESO decision in question.
36In this case, I am persuaded that the applicant made discreet allegations of discrimination as set out in paragraph 3 above and those allegations have not been appropriately dealt with in the ESO decision.
37First, I am not convinced that the ESO even has concurrent jurisdiction to deal with the applicant’s claims related to accommodation of family status needs and accommodation of the need to express milk under s. 74(1) of the ESA. Further and in any event, even if I am mistaken in this regard, I do not find that either of these issues is addressed in the ESO decision. While these issues appear to have been raised in the underlying ESA complaint to some degree, there is no explicit reference to either issue in the facts, reasons or remedy of the ESO decision. I do not find it would reasonable to conclude that the references in the remedy paragraph to the applicant having an infant and being disillusioned about her expectations of fairness in the workplace equates with the ESO considering these issues particularly given that neither factual allegation is outlined in the decision.
38Further, as for the references in the remedy section, in my view the interpretation of the language referenced (“infant” and “fairness”) has to be viewed in context. The ESO concludes that the applicant found it very upsetting and emotionally exhausting to be dismissed because she had an infant and she was left profoundly disillusioned about her expectations of fairness in the workplace. There is nothing in this paragraph that would suggest these references relate to anything other than the impact of the dismissal, an issue that the applicant agreed was appropriately dealt with by the ESO decision.
39I also do not find that the issue of the alleged change in duties before the maternity leave was appropriately dealt with in the ESO decision. Even assuming the ESO has jurisdiction, which is not entirely clear, there is no indication that the ESO addressed the issue. While the ESO referred to the underlying facts briefly in the factual narrative, it is not apparent that the ESO made any determination on the issue when addressing the question of whether or not there had been a reprisal. While the respondents argue that by finding a breach of section 74(1) of the ESA, the ESO did determine the issue, I am not convinced that this is the case. Apart from one line about witness evidence on the issue, the entirety of the reasons for the reprisal and the focus of the paragraphs on remedy appear to be about the dismissal and not the allegations predating the maternity leave.
40In any event, the Tribunal has a discretion and I am not prepared to exercise my discretion and dismiss this part of the Application given the absence of any clear indication that the ESO dealt with this issue in the ESO decision.
41In the circumstances, the Request to dismiss the Application in its entirety under s. 45.1 is denied.
42While the respondents did not expressly request that the Application be dismissed as an “abuse of process”, they did argue that to allow the Application to continue would be contrary to the principles underlying s. 45.1, i.e. the public interest in finality of decisions, avoiding among other things, unnecessary re-litigation and unnecessary expenditure of scarce judicial and administrative resources and double recovery for the same set of facts and allegations. While these are valid principles, in this case, I do not find that it would be inconsistent with these principles to proceed in this case on the three issues identified because it is not apparent to me that the ESO addressed the issues in question or considered the same in ordering his remedy.
Order
43For the reasons above, those parts of the Application set out in paragraph 3 above will continue in the Tribunal’s process. Having regard to the applicant’s concessions, the allegations relating to the preservation of her position upon her return to work, the applicant’s access to a raise, and the applicant’s termination from employment are dismissed.
Next Steps
44The respondents are directed to file a Response within 35 days of the date of this Interim Decision.
Dated at Toronto, this 24th day of December, 2015.
“Signed by”
__________________________________
Kathleen Martin
Vice-chair