Chartier v. Lloyd, 2017 HRTO 1197

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edith Chartier Applicant

-and-

Lisa Lloyd and Madeleine Ibrahim Respondents

DECISION

Adjudicator: Jennifer Khurana Date: September 12, 2017 Citation: 2017 HRTO 1197 Indexed as: Chartier v. Lloyd

APPEARANCES

Edith Chartier, Applicant Self-represented

Lisa Lloyd and Madeleine Ibrahim, Respondents Self-represented

1This Application alleges discrimination with respect to employment because of sex and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was laid off after she disclosed her pregnancy to her employer. In the Application she also alleges that she was not hired as a manager or as a sales consultant and that two other individuals were hired for these positions who were not pregnant.

2Prior to filing her Application the applicant also filed a claim with the Ministry of Labour (“MOL”) alleging contraventions of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“the ESA”). Among her allegations the applicant claimed that she was reprised against for being pregnant and that her employers offered her a sales consultant position but then hired someone else after she disclosed she was pregnant.

3The respondents filed a Response denying the allegations and also requested that the matter be dismissed because the substance of the matter had been dealt with in another proceeding. The applicant filed a Reply.

4On June 12, 2017, the Tribunal, by way of Registrar’s letter, advised the parties that a preliminary hearing would be held to determine whether the application should be dismissed pursuant to section 45.1 of the Code. Section 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.

5The respondents delivered and filed documents in advance of the preliminary hearing, including a copy of the Employment Standards Officer (“ESO”) decision determining the applicant’s claims for termination pay and alleged reprisal for being pregnant. The applicant did not deliver or file any documents or materials.

6On September 7, 2017, a preliminary hearing by teleconference was held to determine whether the Application should be dismissed pursuant to section 45.1 of the Code. All of the parties participated in the preliminary hearing.

DECISION

7The Application is dismissed. I am satisfied that the substance of this Application has been appropriately dealt with by the MOL proceeding.

8The applicant submits that the ESO did not address her claim that she was laid off from the sales position. According to the applicant the ESO’s decision only addresses whether the applicant was laid off from her position as a seasonal seamstress and did not take into consideration her claim that had already been offered the position as a sales consultant and but was then laid off after she disclosed that she was pregnant and the position was given to someone else.

9The respondents submit that the applicant’s complaint to the MOL was essentially the same and that the ESO’s investigation and subsequent decision determined that there was no reprisal because of pregnancy.

10Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. This Tribunal has found that the Supreme Court of Canada’s reasoning in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”), applies to the interpretation of s. 45.1 of the Code. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, and Claybourn v. Toronto Police Services Board, 2013 HRTO 129.

11The 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.

12The Tribunal has repeatedly held that a complaint determined by an Employment Standards Officer (“ESO”) constitutes a “proceeding” within the meaning of s. 45.1. See for example, Hughes v. 1378768 Ontario Inc. o/a City Centre Collision Inc., 2016 HRTO 1671, and Windrem v. JF Moore Lithographers Inc., 2012 HRTO 785. I therefore turn to whether the MOL proceeding appropriately dealt with the substance of the Application.

13In assessing whether the substance of an Application was appropriately dealt with in another proceeding, the Tribunal must ask itself (1) whether there was concurrent jurisdiction to decide human rights issues; (2) whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and (3) whether there was an opportunity for the applicant or his or her privy to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the re-litigation of what is essentially the same dispute. See Figliola, above, at para. 37.

14In considering whether the other proceeding appropriately dealt with the substance of an Application, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding. See Figliola, above, at para. 38.

15However, in considering whether the other proceeding appropriately dealt with the substance of an Application, the Tribunal must also consider whether it would be unfair to dismiss the Application because either the prior proceeding was unfair, or, even if the prior proceeding was conducted fairly, it would be unfair to use the results of that process to dismiss the Application. See Penner, above, at para. 39.

16In my view, the MOL proceeding had concurrent jurisdiction to decide human rights issues and the ESO dealt with the substance of the issues raised in this Application. The applicant knew the case she had to meet, raised the issues before the ESO, and had an opportunity to make submissions on the issues at hand. The pregnancy and parental leave provisions and the reprisal provisions of the ESA are in essence anti-discrimination provisions. The applicant did not submit that the ESA process was not fair or make any submissions about why it would be unfair to rely on the ESO’s decision in making my determination under s.45(1).

17At page 1 of the MOL decision, the ESO frames the applicant’s reprisal complaint as follows:

Issues: Reprisal for pregnancy

Ms. Chartier states that she was offered the position of sales consultant after her position of seamstress was over at the end of October. Ms. Chartier said that the employer hired another employee as sales consultant at the end of September after they found out she was pregnant. Ms. Chartier claims that she would have been their sales consultant if she was not pregnant.

Issues: Reprisal for Sale Consultant position

Ms. Chartier claims that the employer reprised against her because of their learning she was pregnant, she said the employer gave her notice that her position was ending and a record of employment which stated that she was not returning.

18In the MOL proceeding, the employer denied that it hired any other seamstresses or sales consultants after the applicant left, and stated that both the applicant and another seamstress were given notice in October that the season was ending. It did not hire the applicant for the position of sales consultant because it was struggling financially.

19Following her investigation, the ESO found that the employer had not reprised against the applicant either with respect to her seamstress position ending or with regard to the sales consultant position. The ESO found that the employer ended both seamstress positions on the same day, and did not hire anyone after these layoffs. Finally, the decision stated that the employer was not obligated to give the applicant a position as a sales consultant and it did not hire anyone new after the applicant left in this position either.

20The applicant may not be satisfied with the ESO’s decision and may dispute the ESO’s characterisation of the sales consultant position she alleges she had already been offered. She believes she already had the position, although she acknowledged that she did not actually work in that capacity while employed by the respondents. It is not the role of this Tribunal, however, to review or act as an appellate body for the MOL proceeding.

21The applicant cannot now seek to re-litigate the same allegations before this Tribunal. While she argues that the issues determined by the ESO were substantially different because reference was made to a job “offer” rather than a job she was already given, I do not find these differences, even if accepted, material or substantial. While the applicant appears to allege that she was also offered a position of manager in her Application and this is not addressed in the MOL proceeding, the applicant did not make any submissions on this difference at the hearing. In any event, the ESO clearly considered the broader issue of whether the applicant had been reprised against because she was pregnant both with respect to her seamstress position layoff and the sales consultant role she believed she was offered. The applicant made no other submissions at the hearing in support of her position that the ESO decision did not appropriately deal with the substance of the Application.

22To use the language of Figliola, above, at the end of the day, it does not make sense to expend public and private resources on the re-litigation of what is essentially the same dispute.

23For all of these reasons, the respondents’ request for dismissal is granted. The Application is dismissed.

ORDER

24The Application is dismissed.