Nguyen Pham v. Dimpflmeier Bakery Ltd., 2017 HRTO 905

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nguyen Pham

Applicant

-and-

Dimpflmeier Bakery Ltd.

Respondent

INTERIM DECISION

Adjudicator: Yasmeena Mohamed

Date: July 20, 2017

Citation: 2017 HRTO 905

Indexed as: Pham v. Dimpflmeier Bakery Ltd.

Introduction

1The applicant filed an Application on December 15, 2015 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex, including sexual harassment and pregnancy. On March 21, 2016, the Tribunal deferred consideration of the Application pending the conclusion of a related Small Claims Court (“SCC”) proceeding.

2The SCC proceeding was adjudicated and a decision issued on April 20, 2017.

3The applicant filed a Request for an Order during Proceedings on June 15, 2017 requesting the reactivation of the Application (“request to reactivate”) in light of the conclusion of the SCC proceeding. The respondent has not responded to the applicant’s request to reactivate and the time for doing so has expired. In these circumstances, the request to reactivate the Application is granted.

4Having reviewed the file, the Human Rights Tribunal of Ontario (the “Tribunal”) has decided to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. another proceeding has appropriately dealt with the substance of the Application

Has Another proceeding appropriately dealt with the substance of the application (section 45.1 of the Code)?

5It appears that the SCC proceeding may have considered and appropriately dealt with the substance of this Application.

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 parties may make submissions on whether the Application should be dismissed on this basis. In preparing their submissions, the parties may wish to consider the decisions of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, as well as cases in which the Tribunal has considered the application of s.45.1, including Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and Levkivska v. Peel Condominium Corporation No. 231, 2016 HRTO 270. All the decisions can be accessed free of charge on the website of the Canadian Legal Information Institute at: www.canlii.org/en/.

8If the parties wish to rely on any evidence, witnesses or case law with respect to this issue, they must deliver any additional documents, witness lists or case law they wish the Tribunal to consider, to each other and file them with the Tribunal no later than 35 days after the date of this CAD. If any party intends to call witnesses a summary of the witness’ intended evidence must also be filed and delivered.

Next Steps AND DIRECTIONS

9The Registrar will schedule a half day hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the preliminary hearing. Although scheduled for a half day, not all preliminary hearings require a half day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

10If the Tribunal determines that another proceeding has appropriately dealt with all or part of the substance of the Application, it will be dismissed and the parties will receive a decision containing the reasons for the dismissal.

11I am not seized.