Frlan v. Humber River Hospital, 2016 HRTO 638

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathy Frlan Applicant

-and-

Humber River Hospital Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: May 11, 2016 Citation: 2016 HRTO 638 Indexed as: Frlan v. Humber River Hospital

WRITTEN SUBMISSIONS

Kathy Frlan, Applicant Self-represented

1This Application alleges discrimination with respect to employment because of disability, pregnancy and reprisal contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). Though not specifically claimed in the Application as filed, the applicant in subsequent submissions indicated that she is also claiming discrimination on the basis of family status.

2The applicant began a parental leave in May 2015. In October 2015, she claims she advised the respondent that she was considering having another child, and she in fact became pregnant again in December 2015. She claims she asked in January 2016 to return early from her leave, and that the respondent told her there was a lot of work for her to do. Shortly thereafter, she claims she advised the respondent that she was having complications with her pregnancy, and that her doctor provided documentation to support this claim. Two days later, she was advised that her employment was being terminated due to the elimination of her position. She is seeking financial compensation, reinstatement to her previous position, and human rights training for the respondent.

3She also indicated she had filed a complaint with the Ministry of Labour under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”). The ESA complaint alleged that the respondent had failed to reinstate her to her position at the end of her leave contrary to ESA s.53(1), and had reprised against her contrary to ESA s.74. She is seeking financial compensation and reinstatement to her previous position.

4The Tribunal, on its own initiative, issued a Notice of Intent to Defer the Application pending the resolution of the ESA proceedings, and sought submissions from the applicant. The respondent has not yet been required to file a Response.

5Because the same underlying facts could give rise to a claim under either statute, it is not unusual for an individual to file both a complaint under the ESA and an application under the Code. As a result, the Tribunal has regularly been called upon to address the question of whether deferral is appropriate in circumstances similar to the present case.

6Previous decisions of the Tribunal have noted that the pregnancy and parental leave provisions in ESA Part XIV, along with ESA s.74, which prohibits reprisal, provide protection from discrimination for women in the workplace because of pregnancy. See Chen v. Harris Rebar, 2009 HRTO 227, Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443, and Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448. Subsection 104(1) of the ESA sets out the remedies that can be ordered for a contravention, and include compensation for any loss incurred as a result of the contravention, and/or reinstatement to employment. These remedies are quite similar to the remedies available under s.45.2 of the Code.

7Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. Deferral of an application ensures that the proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

8The applicant objects to the Application being deferred. She argues that though they arise out of the same facts, the ESA complaint and the Tribunal Application are addressing different issues. She claims that the ESA complaint will only investigate whether the respondent breached its obligations under ESA to reinstate her employment at the end of her leave, and to investigate whether her previous position, or a comparable position, was available in the workplace. In contrast, she states that the Code Application is about whether her employment was terminated because of her second pregnancy, or because of the complications resulting from that pregnancy that prevented her from returning to work.

9Though the statutory basis for the two proceedings may be different, there is nonetheless in my view a significant possibility that the issues will overlap. The applicant is seeking reinstatement in both proceedings, and whether that is an appropriate remedy in either proceeding will likely require a determination of what positions are available. She is also alleging reprisal in the ESA complaint. The basis for a claim of reprisal in ESA s.74 is different, and broader, than a claim of reprisal under the Code, and specifically includes dismissing an employee because they may be eligible for, had taken, or were intending to take a leave; this is essentially the same claim being raised in her Application under s.5 of the Code. In my view, there is a real possibility that both the employment standards officer and the Tribunal will be called upon to make determinations on the same set of disputed facts.

10The Application will therefore be deferred pending the completion of the ESA complaint. If the applicant believes, on conclusion of that process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

11The 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 another proceeding. 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/.

12I am not seized.