Smith v. Singh, 2015 HRTO 887

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brittany Smith Applicant

-and-

Sundeep Singh and Sandhya Singh Respondents

DECISION

Adjudicator: Ken Bhattacharjee Date: July 3, 2015 Citation: 2015 HRTO 887 Indexed as: Smith v. Singh

APPEARANCES

Brittany Smith, Applicant Shannon Smith, Representative

Sundeep Singh and Sandhya Singh, Respondents Brian Silva, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against her with respect to employment because of her sex (pregnancy), and subjected her to a reprisal for claiming her rights under the Code.

2The purpose of this Decision is to decide whether the Application should be dismissed on the basis that an Employment Standards proceeding appropriately dealt with its substance. The parties attended a preliminary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

3The applicant was employed by the respondents as a nanny from November 2012 to May 10, 2013. On May 13, 2013, she filed an Employment Standards claim with the Ministry of Labour, and on June 6, 2013, she filed an Application with this Tribunal. In both proceedings, her main allegation was that Sundeep Singh terminated her employment because she was pregnant, and she claimed monetary damages.

4On October 3, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 1668, which ordered that the Application be deferred pending the conclusion of the Employment Standards proceeding. The Interim Decision also notified the parties that, pursuant to the Tribunal’s Rules of Procedure, where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings (“RFOP”) within 60 days after the conclusion of the other proceeding.

5On November 28, 2013, an Employment Standards Officer issued a Decision, which, among other things, upheld the applicant’s claim that Mr. Singh terminated her employment because she was pregnant. The Officer awarded her lost wages from May 10, 2013 (her final day of pay) to August 1, 2013 (the date that she gave birth) in the amount of $5,076.53, and general damages for emotional pain and suffering in the amount of $1,000.

6On September 2, 2014, the applicant filed an RFOP, which requested that the Application be reactivated because the Employment Standards proceeding had concluded.

7On September 17, 2014, the Tribunal issued a Case Assessment Direction, which directed that a preliminary hearing be held to address whether the Application should be reactivated and, if so, whether it should be dismissed pursuant to s. 45.1 of the Code on the basis that the Employment Standards proceeding appropriately dealt with its substance.

8The preliminary hearing took place on March 31, 2015. I heard the parties’ oral submissions and reserved my Decision.

9For the purposes of this Decision, I will assume without deciding that the Application should be reactivated.

ANALYSIS

10Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. This Tribunal has found that the Supreme Court of Canada’s reasoning in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”) applies to the interpretation of s. 45.1 of the Code. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, and Claybourn v. Toronto Police Services Board, 2013 HRTO 129.

11Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process, which are used as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness. See Figliola, above, at paras. 24-25.

12The principles underlying s. 45.1 of the Code can be summarized as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on.
• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice. On the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings.
• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature.
• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision.
• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.
• Considering whether it would be unfair to dismiss an Application

See Figliola, above, at paras. 34-35, and Penner, above, at paras. 36-39.

13Section 45.1 of the Code requires a two-part analysis: (1) whether there was another proceeding and, if so, (2) whether it appropriately dealt with the substance of the Application.

14In the case at hand, there was no dispute between the parties that the Employment Standards proceeding was a proceeding within the meaning of s. 45.1 of the Code. As such, the main issue to be decided is whether that proceeding appropriately dealt with the substance of the Application.

15In assessing whether the substance of an Application was appropriately dealt with in another proceeding, the Tribunal must ask itself (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 applicant or his or her privy 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. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute. See Figliola, above, at para. 37.

16In considering whether the other proceeding appropriately dealt with the substance of an Application, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding. See Figliola, above, at para. 38.

17However, in considering whether the other proceeding appropriately dealt with the substance of an Application, the Tribunal must also consider whether it would be unfair to dismiss the Application because either the prior proceeding was unfair, or, even if the prior proceeding was conducted fairly, it would be unfair to use the results of that process to dismiss the Application. See Penner, above, at para. 39.

18Some of the factors that are relevant in determining whether it would be unfair to use the results of the prior proceeding to dismiss the Application are whether there are provisions in relevant legislation that contemplate parallel proceedings, whether the applicant had a financial stake in the prior proceeding, what the parties’ reasonable expectations were about the impact the prior proceeding would have on their broader legal rights, and whether there are important policy considerations at stake. See Penner, above, at paras. 42-68.

19In her submissions, the applicant stated that the Employment Standards proceeding did not appropriately deal with the substance of the Application because the Employment Standards Officer’s award did not include compensation for her loss of Employment Insurance (“EI”) maternity leave benefits, and did not fully compensate her for pain and suffering. Therefore, she stated, this Tribunal should proceed to hear her claim for EI maternity leave benefits and additional compensation for pain and suffering.

20I disagree. I find that the Employment Standards proceeding appropriately dealt with the substance of the Application. In my view, the applicant is trying to relitigate what is essentially the same dispute. There is no dispute that the Employment Standards Officer had jurisdiction to decide human rights issues, and that the applicant had an opportunity to know the case to be met and had the chance to meet it. Furthermore, the main legal issue that was decided by the Officer is essentially the same as the main legal issue before this Tribunal.

21With respect to the applicant’s argument that the Employment Standard Officer’s award did not include compensation for her loss of EI maternity leave benefits, and did not fully compensate her for pain and suffering, it is not appropriate for this Tribunal to evaluate the substantive correctness of the Employment Standards proceeding, and to sit in review of the Officer’s award. The method of challenging the validity or correctness of the Officer’s award is through an Application for Review to the Ontario Labour Relations Board. The applicant cannot circumvent the appropriate review mechanism by using this Tribunal to challenge the alleged errors or deficiencies in the Officer’s award.

22I also find that it is not unfair to dismiss the Application pursuant to s. 45(1) of the Code. The applicant has not alleged that the proceeding before the Employment Standards Officer was unfair. Furthermore, I find that it is not unfair to use the results of that process to dismiss the Application. The applicant had a financial stake in that process, and received a remedy. I also do not accept that the parties’ reasonable expectation was that the applicant would be allowed to pursue her Application before this Tribunal to address any alleged errors or deficiencies in the Officer’s Award.

23In my view, it does not make sense to expend public and private resources on the relitigation of what is essentially the same dispute.

24The applicant had a choice. She could have elected not to raise her human rights issues in the Employment Standards proceeding. She could have then proceeded before this Tribunal with her Application without being affected by the Employment Standards Officer’s award. However, having chosen to pursue her human rights issues in the Employment Standards proceeding, she must accept the consequences of that choice.

ORDER

25The Application is dismissed.