Manza v. Cosmo Music Company Ltd., 2017 HRTO 1064

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristen Manza

Applicant

-and-

Cosmo Music Company Ltd. and Denise Chan

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: August 15, 2017 Citation: 2017 HRTO 1064 Indexed as: Manza v. Cosmo Music Company Ltd.

WRITTEN SUBMISSIONS

Kristen Manza, Applicant

Kristopher Stone, Counsel

Cosmo Music Company Ltd. and Denise Chan, Respondents

Paul Veugelers, Counsel

1This Interim Decision addresses the respondents’ request to dismiss the Application under s. 45.1 of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). It also addresses the applicant’s request to amend her Application.

2In her Application, the applicant alleged that the respondents discriminated against her because of her age and sex and reprised against her contrary to the Code. Specifically, the applicant alleged that her supervisor made discriminatory and/or harassing comments about her age and her appearance.

3In addition to filing this Application, the applicant also filed a claim with the Workplace Safety and Insurance Board (“WSIB”) in which she alleged traumatic mental stress.

RESPONDENTS’ REQUEST TO DISMISS

4The respondents requested that the Tribunal dismiss the Application under s. 45. 1 of the Code due to the WSIB’s denial of the applicant’s claim. The respondents also sought to dismiss the Application due to an anonymous occupational health and safety complaint that had been filed with the Ministry of Labour.

5The applicant opposed the respondents’ Request on the basis that the WSIB complaint did not deal with the substance of the Application and the applicant claims not to have filed the Ministry of Labour complaint.

6Section 45.1 of the Code states:

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.

7Even if the WSIB proceeding in this case amounts to a “proceeding” within the meaning of s. 45.1 of the Code, that proceeding did not deal with the substance of this Application. The sole issue before the WSIB was whether the injury the applicant was alleging fell within its operational policy governing traumatic mental stress. The WSIB did not address whether any of the respondents’ actions amounted to discrimination or harassment. Therefore, the respondents’ request to dismiss the Application under s. 45.1 due the applicant’s WSIB claim is denied.

8The applicant has stated that she is not the person who filed the complaint the complaint with the Ministry of Labour. Therefore, the Ministry of Labour’s letter cannot be said to have appropriately dealt with the substance of the Application. In addition, the Ministry’s letter deals with issues that are distinct from the allegations raised in the Application.

9For the above reasons, the respondents’ request to dismiss the Application under s. 45.1 of the Code is denied.

REQUEST TO AMEND APPLICATION

10The applicant filed a Request for Order During Proceedings (“RFOP”) on May 31, 2017 in which she requested to amend the remedy sought in the Application. She also sought to add certain allegations regarding the termination of her employment.

11The respondents took no position in response to the RFOP and has already made submissions in its Response addressing the allegations contained in the RFOP.

12I find it appropriate to grant the applicant’s request to amend her Application since the applicant filed her RFOP shortly after filing her Application and it is not opposed by the respondents.

ORDER

13The Tribunal orders as follows:

a. The respondents’ request to dismiss is denied; and

b. The applicant’s request to amend her Application is granted. The Application is amended to include the remedies sought in her May 31, 2017 RFOP as well as the additional allegations contained in that RFOP.

14I note that the applicant has expressed an interest in mediation but the respondents have not. The respondents are directed to confirm with the Tribunal in writing whether they are willing to participate in a mediation in this case within 7 days of this Interim Decision. If the respondents are not willing to take part in a mediation, the Tribunal will proceed to schedule this Application for a two day hearing.