Castaño Gonzalez v. 1594058 Ontario Ltd., 2016 HRTO 445

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Castaño Gonzalez Applicant

-and-

1594058 Ontario Ltd. o/a Remark Fresh Markets, London Police Services Board, and Jeffrey Cole Respondents

INTERIM DECISION

Adjudicator: Bruce Best Date: April 8, 2016 Citation: 2016 HRTO 445 Indexed as: Castaño Gonzalez v. 1594058 Ontario Ltd.

WRITTEN SUBMISSIONS

Paula Castaño Gonzalez, Applicant Terry S. Guerriero, Counsel

1594058 Ontario Ltd. o/a Remark Fresh Markets, Respondent Cézanne Charlebois, Counsel

London Police Services Board and Jeffrey Cole, Respondents Frank A. Angeletti, Counsel

1This Application alleges discrimination with respect to employment and services because of place of origin, ethnic origin and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant claims that she was assaulted and threatened by a customer at her workplace in January 2015. She claims that the police officer who took the report discriminated against her in that he did not take her allegations seriously, including attempting to discount the seriousness of the alleged threat by explaining to her that the words used may have a different meaning in Canada. She similarly alleges that the employer also did not take her allegations seriously, and did not take sufficiently prompt action to protect her safety.

3The police deny any discriminatory conduct, claim that her complaint was taken seriously, and that she was given the option to pursue criminal charges at the time but that she chose not to. When she changed her mind several weeks later, the police laid charges against the customer. The employer similarly denies any discriminatory conduct. It claims that following the incident it issued a trespass notice against the customer, and though he returned to the store, it took further steps to ensure he would not come in contact with the applicant. It further claims that her reaction to the incident with the customer at the time was inconsistent with her description in the Application.

4The respondents have requested that the Application be deferred pending the outcome of a related proceeding before the Workplace Safety and Insurance Board (“WSIB”). The respondents have also requested that the Tribunal hold a summary hearing on the basis that the Application has no reasonable prospect of success.

Name of Respondent police service and Grounds of application

5The applicant named the “London Police Services (Police Constable Cole)” as respondents. A Response was filed by the “London Police Services Board” on behalf of the London Police Service and Constable Cole (the “police respondents”), noting that the Board is the legal entity that governs the police service. The name of the respondent “London Police Services” is amended to “London Police Services Board”, and the style of cause is amended accordingly.

6The police respondents also noted that the only Code ground selected on the application form was “employment”. The Response, however, addressed the allegations on the basis that they were with respect to services. The applicant subsequently clarified that the allegations against the police respondents were only with respect to services under s.1. The Application is therefore amended to add the ground of goods, services or facilities as against the police respondents.

Request to Defer

7The respondent employer asks that the Application be deferred pending the outcome of a related appeal before the WSIB. The applicant made a claim to the WSIB on the basis that she experienced a traumatic event as a result of the incident with the customer at the workplace. The claim was initially approved. However, following a review of additional evidence, including a security video, the WSIB determined that the incident involving the customer did not occur as originally described, and that it was unable to establish that a traumatic event had actually occurred. The WSIB cancelled the applicant’s benefits as a result. The applicant has since filed an appeal of that decision.

8The applicant objects to deferral. Though she acknowledges that there may be some overlap of facts, she takes the position that the Tribunal does not have to determine the details of what happened with the customer, as the allegations in the Application all relate to how she was treated by the police respondents and respondent employer after the alleged incident.

9In my view, however, the details of what happened with the customer may well have to be determined by the Tribunal in deciding whether the treatment she received was discriminatory. Whether the employer and the police treated the applicant appropriately in the circumstances will require a determination of what the circumstances were.

10Furthermore, even if the applicant can establish that the respondents’ treatment of her was discriminatory, the impact on her may be very different depending on what actually happened with the customer, and the Tribunal would need to make findings as to what happened in order to determine the appropriate remedy. The current determination by the WSIB is that there was insufficient evidence that a traumatic incident occurred at all, and this issue is currently under appeal.

11Even where the other proceeding will not address all the issues that are before it, the Tribunal has held that deferral may nonetheless be appropriate. See Lavallee v. Metro Ontario, 2011 HRTO 890 at para 5, Lajoy v. Vrents Inc. o/a Volvo Rents, 2014 HRTO 31 at para 9, and Bradshaw v. Complex Services, 2010 HRTO 1215 at para 16.

12Considering all the above, I find that there is substantial overlap between the issues raised before the WSIB and in the Application, and find that it is appropriate to defer the Application pending the completion of the WSIB appeal process.

13Once the WSIB has issued a final decision in the current proceeding, or the proceeding is otherwise concluded, either party can ask the Tribunal to re-activate the Application. Depending on the circumstances, the Application may then be re-activated or deferred again if there remains an ongoing process that would make a continued deferral appropriate.

14The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. Where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.

Request to Remove the Individual Respondent and Request for Summary Hearing

15Given my decision that the Application should be deferred, the requests for a summary hearing and request to remove the individual respondent will be addressed by the Tribunal should the matter be reactivated.

16I am not seized.