Hughes v. 1378768 Ontario Inc. o/a City Centre Collision Inc., 2016 HRTO 1671

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristy Hughes

Applicant

-and-

1378768 Ontario Inc. o/a City Centre Collision Inc.

Respondent

DECISION

Adjudicator: Mark Hart

Date: December 22, 2016

Citation: 2016 HRTO 1671

Indexed as: Hughes v. 1378768 Ontario Inc. o/a City Centre Collision Inc.

APPEARANCES

Kristy Hughes, Applicant

Self-represented

1378768 Ontario Inc. o/a City Centre Collision, Respondent

Shane Campbell, Representative

1This is an Application dated May 20, 2015 alleging discrimination with respect to employment because of sex, family status and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant alleges that she was terminated from employment at the commencement of her pregnancy leave, and was not re-instated to her job following the end of her pregnancy and parental leave.

3On May 5, 2015, shortly before filing her human rights Application, the applicant had filed a complaint with the Ministry of Labour (“MOL”) alleging a violation of her rights under the Employment Standards Act, 2000 (“ESA”) on the basis that she experienced reprisal in response to her entitlement to pregnancy and parental leave.

4By letter dated September 8, 2015, this Tribunal advised the parties that the human rights proceeding would be deferred pending the conclusion of the MOL proceeding.

5On March 31, 2016, the MOL released its decision in relation to the applicant’s complaint. The employment standards officer found that the applicant had suffered a reprisal in response to her entitlement to pregnancy and parental leave. It was found that the respondent failed to reinstate the applicant to the position she held prior to her leave of absence, in violation of s. 53 of the ESA, and that the applicant had therefore suffered a reprisal in violation of s. 74 of the ESA.

6The employment standards officer awarded the applicant 16 weeks of lost wages plus vacation pay to compensate her for a reasonable amount of time to find new employment, less the 8 weeks of severance pay the applicant had received when her employment was terminated at the commencement of her leave. The applicant was awarded a further amount equivalent to six weeks of lost wages at 50% to compensate her for the loss of her reasonable expectation of continued employment with the respondent. Finally, the applicant was awarded a further $1,000 for emotional pain and suffering arising from the violation of her rights. The total amount awarded to the applicant was paid in full by the respondent on March 29, 2016 in voluntary compliance with the MOL award.

7By Request for Order dated April 19, 2016, the applicant sought to re-activate her human rights Application on the basis that the MOL proceeding had concluded. By Interim Decision 2016 HRTO 681, dated May 19, 2016, this Tribunal granted the applicant’s re-activation request, and directed that a preliminary hearing be held by teleconference to hear oral submissions from the parties as to whether the Application should be dismissed pursuant to s. 45.1 of the Code on the basis that the substance of the Application already had been appropriately dealt with in the MOL proceeding. The parties specifically were referred to this Tribunal’s decision in Smith v. Singh, 2015 HRTO 887, which dismissed an Application pursuant to s. 45.1 of the Code on the basis of an employment standards officer’s decision in very similar circumstances.

8The preliminary hearing proceeded by teleconference on August 24, 2016, at which time I heard the parties’ oral submissions. I also have considered all material filed with the Tribunal for the purpose of the preliminary hearing.

9On the basis of this Tribunal’s caselaw, there is no question that a proceeding before an employment standards officer as a result of a complaint under the ESA is a “proceeding” within the meaning of s. 45.1 of the Code: see Smith v. Singh, above; Chen v. Harris Rebar, 2009 HRTO 227; James v. Kuehne & Nagel, 2011 HRTO 2317; Windrem v. JF Moore Lithographers Inc., 2012 HRTO 785; and Law v. Noonan, 2013 HRTO 437.

10As in the Smith v. Singh case, the issue before me is whether the MOL proceeding appropriately dealt with the substance of the Application. As stated in Smith v. Singh, at paras. 15 to 17:

In 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.

In 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.

However, 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.

11There is no question that, in a proceeding under the ESA, there is concurrent jurisdiction to decide human rights issues. There also is no question that the legal issue decided in the MOL proceeding was essentially the same as what is being complained of to this Tribunal. While the language in the ESA relates to an employee experiencing reprisal for having taken a pregnancy and/or parental leave, that is the same essential question being raised by the applicant in her human rights Application, which alleges that she experienced discrimination because of sex or family status or reprisal when she was terminated at the commencement of her leave and was not returned to employment following her leave. In addition, there is no question that in the MOL proceeding, the applicant had the right to know the case against her and had the chance to meet it. Indeed, she was successful in meeting the respondent’s allegations in the MOL proceeding.

12I also agree with this Tribunal’s decision in the Smith v. Singh case that it would not be unfair for the results of the MOL proceeding to be used to dismiss the applicant’s human rights Application. As stated in Smith v. Singh, above, at para. 22:

I 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.

13While it may be that the remedies awarded in the MOL proceeding are less than what may have been awarded in a proceeding before this Tribunal, it is not the proper role of this Tribunal to essentially sit in review of, or on appeal from, a decision of an employment standards officer. That jurisdiction lies with the Ontario Labour Relations Board, to which the applicant had a right of review from the employment standards officer’s decision if she felt that the award was insufficient. As observed in Smith v. Singh, above, at para. 21: “The applicant cannot circumvent the appropriate review mechanism by using this Tribunal to challenge the alleged errors or deficiencies in the Officer’s award.”

14I concur with the finding in Smith v. Singh that the applicant had a choice whether to file a complaint under the ESA or file a human rights Application under the Code to address the allegations raised. Having chosen to do both and having had her allegations addressed in her favour in the MOL proceeding, the applicant cannot now seek to re-litigate the very same allegations before this Tribunal in the hope of receiving a greater remedy.

ORDER

15For the foregoing reasons, the Application is dismissed pursuant to s. 45.1 of the Code.