Cassandra Clarke v. Tiny Town Daycare Inc., 2015 HRTO 613

Human Rights Tribunal of Ontario

B E T W E E N:

Cassandra Clarke Applicant

-and-

Tiny Town Daycare Inc. Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: May 12, 2015 Citation: 2015 HRTO 613 Indexed as: Clarke v. Tiny Town Daycare Inc.

1This is an Application under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent employer discriminated against the applicant because of sex with respect to employment. The two main allegations in the Application appear to be that the respondent discriminated against the applicant by mistreating her during the course of her employment, and also by terminating her employment.

DEFERRAL TO OLRB PROCEEDING

2The Application was scheduled to be heard on April 8, 2015. That hearing date ended up being adjourned because the owner of the respondent daycare, Gerald Jutsun, was unable to attend for medical reasons. Before adjourning the April 8, 2015 hearing date, I explained to the parties that, before scheduling another date, I wished to receive their submissions on whether the Tribunal should defer this case until the conclusion of an ongoing proceeding before the Ontario Labour Relations Board (“OLRB”) with respect to the applicant’s claim under the Employment Standards Act, 2000 (“ESA”).

3Following the hearing, the applicant and the respondent both made written submissions with respect to whether the human rights Application should be deferred until the ongoing proceeding before the OLRB has concluded.

4The applicant submits that she filed an ESA claim against the respondent in October 2013, which claim was decided by an Employment Standards Officer (“ESO”) in July 2014. In her decision, the Employment Standards Officer determined that the respondent reprised against the applicant for intending to take a pregnancy and/or parental leave, contrary to the ESA, and ordered the respondent to pay certain amounts to the applicant. The respondent has appealed the ESO decision to the OLRB. I understand that there has already been one day of hearing before the OLRB in respect of the ESA appeal and that the next and perhaps the last day of hearing in the OLRB case will be in May 2015.

5The applicant opposes deferral of the Application. She submits that the issues before the OLRB and the Tribunal are separate and unrelated. The applicant also submits that deferral of the Application is stressful to her and her current employer.

6The respondent is in favour of deferral. It submits that there is a risk of inconsistent decisions by the OLRB and this Tribunal if the human rights Application proceeds concurrently with the OLRB proceeding, which has already commenced. Further, the respondent disputes the applicant’s assertion that the proceedings before the OLRB and this Tribunal are separate and unrelated. It submits that both proceedings deal with the same issue in the sense that both deal with the applicant’s allegation that the respondent terminated her employment because she was pregnant.

7Rule 14 of the Tribunal’s Rules of Procedure (the “Rules”) provides that the Tribunal may defer consideration of an Application. As I explained at the hearing, the purpose of deferral is to ensure that proceedings dealing with the same issues do not run concurrently, thereby creating the risk of inconsistent decisions. In deciding whether to defer an Application, the Tribunal will consider whether deferral is the most fair, just and expeditious way of proceeding with the Application, in the particular circumstances of the case.

8Having considered the parties’ submissions, I find that it is appropriate to defer consideration of the Application pending the conclusion of the ESA appeal that is currently ongoing before the OLRB.

9In my view, the facts and issues in the Application overlap significantly with those in the applicant’s ESA claim. Specifically, the ESA proceeding is an appeal from the ESO’s determination that the respondent terminated the applicant’s employment because the applicant, who was pregnant at the time, intended to take a pregnancy and/or parental leave. This overlaps significantly with the claim in the human rights Application that the respondent discriminated against the applicant because of sex, by terminating her employment because of her pregnancy. (Pursuant to s.10(2) of the Code, discrimination on the basis of sex includes discrimination “because a woman is or may become pregnant”.”

10Given that the proceeding before the OLRB is already underway, there is a very significant risk that proceeding with the Application could lead to inconsistent decisions on the overlapping factual and/or legal issues in the Application and the ESA appeal. The primary purpose of deferring an Application is to avoid such potential inconsistency. In all of the circumstances, deferring the Application is appropriate.

11The parties’ attention is drawn to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the hearing before the OLRB has concluded (i.e. a decision has been issued in that proceeding). In particular, the parties’ attention is drawn to the 60-day time limit for requesting reactivation of the human rights Application. Either party may request reactivation of the human rights Application.

45.1 of the human rights Code

12The parties are reminded that, under s.45.1 of the Code, the Tribunal may dismiss all or part of an Application if it is satisfied that it was “appropriately dealt with” in another proceeding. As I explained to the parties at the hearing, if and when this Application is reactivated following conclusion of the OLRB proceeding, there may be a question as to whether part of the human rights Application ought to be dismissed on the basis that it was appropriately dealt with in the context of the applicant’s claim under the ESA. In particular, the Tribunal may direct the parties to make submissions on whether the proceeding under the ESA has appropriately dealt with that part of the human rights Application alleging that the respondent terminated the applicant because of her pregnancy.

13I am not seized of this case.