Moorhouse v. La Vie Executive Health Centre, 2017 HRTO 1139

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Moorhouse

Applicant

-and-

La Vie Executive Health Centre

Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana

Date: September 1, 2017

Citation: 2017 HRTO 1139

Indexed as: Moorhouse v. La Vie Executive Health Centre

WRITTEN SUBMISSIONS

Laura Moorhouse, Applicant

Chantal Tie, Counsel

La Vie Executive Health Centre, Respondent

John Westdal, Counsel

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

2The applicant alleges discrimination with respect to employment on the basis of disability, family status and association with a person identified by a Code ground. Specifically, the applicant alleges that the respondent failed to accommodate her disability and/or family status needs, and that these were a factor in her termination. After she filed her Application the applicant also filed a claim with the Ministry of Labour (“MOL”) alleging contraventions of the Employment Standards Act, 2000 (“the ESA”). The respondent denies the allegations and submits that it terminated the applicant only due to problems with her performance.

3The respondent filed a Request for Order During Proceedings (“Request”), seeking an order from the Tribunal dismissing the Application. The respondent submits that the substance of the Application has been appropriately dealt with under the ESA process. In the alternative, the respondent requests that the Tribunal defer the matter until the appeal of the ESA complaint has been completed. The respondent advises that the applicant appealed the ESA findings to the Ontario Labour Relations Board (“OLRB”) and that the matter will proceed to adjudication and is in the process of being scheduled. Together with its Request, the responded appended a copy of the ESA complaint and the decision issued by the Employment Standards Officer (“ESO”).

4The applicant opposes dismissal and deferral.

DECISION

Dismissal

5Having reviewed the matter, I am not satisfied that the substance of this Application has been appropriately dealt with by the other proceeding.

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.

8The respondent submits that in both proceedings the applicant alleges that she was terminated because she requested a medical leave and/or because she needed to care for her son. The respondent further submits that the ESO’s decision included findings about the reason for the applicant’s termination, namely that it was “based strictly on [her] poor work performance”. The ESO also found that the respondent had discussed terminating the applicant weeks before she requested to take a leave. In light of the ESO’s decision, the respondent argues that these findings preclude a finding that the applicant was terminated because of a Code ground, and that the Application should therefore be dismissed.

9The applicant submits that the ESA proceedings did not address her allegations that the respondent failed to accommodate her disability and family status related needs. While the ESO made factual findings related to the respondent’s reasons for the applicant’s termination, the applicant submits that the issues relating to her experience of discrimination did not form part of the ESA claim. The applicant further argues that the ESO’s decision did not consider whether any of the performance issues underlying the termination were related to a Code protected duty to accommodate.

10The ESO’s decision addressed the applicant’s claims of payment of wages, deductions from wages, commission sales, deductions from wages, record keeping, wage statements, the Employment Standards poster and vacation pay and vacation time. The ESO also dealt with the question of reprisal and made findings of fact related to the employer’s reasons for terminating the applicant and regarding the timing of that decision, namely before the applicant requested her leaves. However the Application is broader and it does not appear that the decision addressed the employer’s alleged failure to accommodate the applicant’s disability and family status-related needs while she was employed. Given the 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.

11The respondent’s 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”.

Deferral

12The respondent’s request to defer the Application to the conclusion of the OLRB proceeding is granted.

13Pursuant 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 proceedings dealing with the same or similar issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatic simply because the parties are engaged in another proceeding. In all cases, the Tribunal must consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

14Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

15The Tribunal has deferred applications where there are on-going ESA claims with facts and issues that overlap with the subject matter of the Tribunal application. See, for example, Mounfield v. Cambridge Memorial Hospital, 2012 HRTO 1400 and Matechuk v. OLG at Thousand Islands, 2009 HRTO 324.

16The applicant submits that there is no danger of inconsistent findings, and that she will rely on the ESO’s decision to support her claim that the performance issues identified by her employer were related to her family status obligations and disability-related needs.

17Considering all the circumstances in this case, I find that deferral is appropriate the applicant maintains that she is not alleging that a Code ground was a factor in her termination. She is, however, alleging that her disability or family status are linked to the respondent’s assessment of her performance, which in turn was the reason for her termination, a finding made by the ESO. In my view there is overlap between the ESA claim now under appeal and the Application in light of the applicant’s challenge to the ESA Officer’s finding on reprisal and the circumstances surrounding the applicant’s termination. In her application for review of the ESO’s decision, appended to the respondent’s Request, the applicant indicates that her reduced productivity was due to issues with her child and her health, and she lists “reprisal” as one of the areas she is appealing or challenging from the ESO’s decision. I find that the factual overlap, between these two claims is sufficient to support the deferral of the Application.

18Accordingly, the respondents’ request for deferral is granted.

19For the reasons set out above, the Tribunal defers consideration of the Application pending the conclusion of the ESA process. Where a party wishes to proceed with an application that has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

ORDER

20The Tribunal orders as follows:

a. The respondent’s request to dismiss the Application under s. 45.1 is denied;

b. The respondent’s request to defer the Application pending the completion of the OLRB proceeding is granted.

21I am not seized of this matter.