Favero v. 1895357 Ontario Inc., 2015 HRTO 688

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sylvie Favero

Applicant

-and-

1895357 Ontario Inc., Nippising Manor and Wentworth Graham

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: May 26, 2015

Citation: 2015 HRTO 688

Indexed as: Favero v. 1895357 Ontario Inc.

WRITTEN SUBMISSIONS

Sylvie Favero, Applicant

Self-represented

1895357 Ontario Inc., Nippising Manor and Wentworth Graham, Respondents

Carolyn Johnston, 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”). This Interim Decision addresses whether or not the Application should be deferred pending the review of a decision of an employment standards officer at the Ontario Labour Relations Board.

BACKGROUND

2The Application alleges discrimination in employment on the basis of sex. The applicant’s main allegation is that she was terminated because of pregnancy.

3A single Response was filed on behalf of both respondents denying the allegations. In addition, the respondents requested that the Application be dismissed pursuant to s. 45.1 on the basis that a decision in a proceeding under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA proceeding”), had dealt with the substance of the Application.

4The respondents provided a copy of the decision of an employment standards officer (“ESO”) dated June 20, 2014. In this decision, the ESO addressed claims for unpaid wages, termination pay and reprisal. The ESO found in favour of the applicant on the claim for wages but dismissed the applicant’s claim for termination pay and reprisal. On the reprisal claim, the ESO found that “the employer’s actions of terminating the employment contract was a result of the reasons other than and not related to the claimant’s eligibility and intention to take a pregnancy and parental leave”.

5The Tribunal subsequently scheduled a hearing by conference call for March 17, 2015, to hear submissions on whether or not the Application should be dismissed on the basis that another proceeding has appropriately dealt with the subject-matter of the Application.

6On March 16, 2015, the Tribunal cancelled the hearing. In a subsequent Case Assessment Direction dated March 17, 2015, the Tribunal stated that the parties’ submissions filed in advance of the hearing indicated that the applicant had sought review of the ESO Decision dated June 20, 2014, and that a hearing was expected to proceed at the Ontario Labour Relations Board. It appeared that July 16, 2015 was the proposed date of the appeal. In the circumstances, the Tribunal stated that it would appear that it may be premature to hear submissions on s. 45.1 and that it may be appropriate to defer the Application pending the outcome of the proceeding at the OLRB. The Tribunal sought submissions on deferral.

7The respondents have filed submissions opposing deferral. The respondents submit that notwithstanding the appeal, it is appropriate to dismiss the Application on the basis of s. 45.1 and not defer the Application. The respondents rely on a number of cases where the Tribunal has dismissed an application under s. 45.1 based on an ESO decision, although I note that in none of the cases referenced is there any indication that the ESO decision was being challenged through an application for review at the Ontario Labour Relations Board.

8While the applicant filed an email in response to the CAD stating that she was seeking advice on the CAD, the Tribunal has not received any further communication from the applicant and over six weeks have elapsed.

DECISION

9Under Rule 14.1, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of a party. In determining whether or not to defer an application, the Tribunal considers a number of factors including the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding. In my view, all of these factors support deferral in this case.

10The respondents’ opposition to deferral is based on their view that the Tribunal should dismiss the Application now as opposed to deferring it. However, I do not find it appropriate to consider the s. 45.1 issue when the other proceeding is still ongoing. Indeed, the Tribunal has stated that the fact that a decision is under appeal is a reason to decline to dismiss an Application under s. 45.1. See Steel v. Johnson Controls Automotive Canada LP, 2014 HRTO 1199 at paras. 12-14.

11Further, I note that the Tribunal cases referenced by the respondents appear to involve final decisions insofar as there is no indication of any active appeal or review of the decisions relied on in connection with the s. 45.1 argument being advanced. In fact, in Mukherjee v. RMF Design and Manufacturing, 2010 HRTO 2111, the Tribunal specifically highlighted that the ESO decision in that case which was ultimately relied on to support dismissal under s. 45.1 was a final decision as it had not been appealed.

12In all the circumstances, I find that it is premature to address the issue of s. 45.1. Instead, the Application shall be deferred pending the conclusion of the ESA proceeding.

13The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the ESA proceeding has been concluded.