Hosseiny v. Richmond Hill Dentistry, 2016 HRTO 961

Human Rights Tribunal of Ontario

B E T W E E N:

Sara Hosseiny

Applicant

-and-

Richmond Hill Dentistry and Harinder Singh

Respondents

INTERIM DECISION

Adjudicator: Jennifer Khurana
Date: July 21, 2016
Citation: 2016 HRTO 961
Indexed as: Hosseiny v. Richmond Hill Dentistry

WRITTEN SUBMISSIONS

Richmond Hill Dentistry and Harinder Singh, Respondents

Self-represented

1This Interim Decision addresses the respondents’ request for the dismissal of the Application pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application alleges discrimination with respect to employment on the basis of disability, sex, sexual harassment and reprisal. The applicant alleges that the personal respondent sexually harassed her and that her employer failed to adequately respond to her complaints. The applicant also alleges that the respondents cut her hours and failed to accommodate her medical appointments. As a result of the stress she was subjected to at work, the applicant alleges her health suffered and she had to leave her position as a dental assistant.

3The applicant filed a complaint with the Ministry of Labour (the “MOL”) alleging contraventions of non-monetary standards of the Employment Standards Act, 2000 (the “ESA”). Together with their Response, the respondents provided a copy of the MOL decision.

4The Tribunal directed the applicant to file a Reply to the Response including submissions responding to the respondents’ request to dismiss. The applicant requested an extension to file the Reply until after the birth of her child in September 2016.

5By Case Assessment Direction (“CAD”) issued May 25, 2016, the Tribunal denied the applicant’s request for a lengthy extension and granted the applicant a further 28 days from the date of the CAD to deliver a Reply to the Response. The applicant did not file a Reply and the time for doing so has passed.

DECISION

6Section 45.1 of the Code reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

7The Tribunal has generally considered section 45.1 in two parts: (1) was there another “proceeding” and (2) if so, did it “appropriately deal with” the substance of the Application.

8Having reviewed the matter, I am not satisfied that the substance of this Application has been appropriately dealt with by other proceedings.

9The ESA proceedings were limited to addressing vacation pay, limits on hours of work, the employer’s responsibility to post the ESA poster, and allegations of reprisal which were subsequently withdrawn by the applicant. There is nothing before me that indicates the MOL claim considered and addressed the substantive allegations of discrimination and sexual harassment during the course of employment. While there is overlap between the two proceedings with respect to allegations of reprisal, the applicant withdrew the reprisal claim under the ESA. Given the limited scope of the ESA claim, I cannot conclude that the MOL proceeding dealt with the substance of the various Code-related allegations in the Application.

10The respondents’ request is denied because another proceeding has not appropriately dealt with the substance of the Application. Given this determination I need not address the issue of whether there was in fact a “proceeding”.

ORDER

11The respondents’ request to dismiss the Application under s. 45.1 is denied. The Application shall proceed and shall be scheduled for hearing.

12I am not seized of this matter.