In the Matter of the Human Rights Code R.S.B.C. 1996, c. 210 (as amended)
In the Matter of a complaint before the British Columbia Human Rights Tribunal
CB, Complainant and Metropolitan Fine Printers Inc., Respondent
Marlene Tyshynski Member
Judgment: February 25, 2010
Docket: 7199
2010 BCHRT 61
Counsel: Laura Anjos, for Complainant
Ib S. Petersen, for Respondent
Marlene Tyshynski Member:
I Introduction
1 CB filed a complaint alleging that Metropolitan Fine Printers Inc. (”Metropolitan”) discriminated against her with respect to her employment, on the basis of sex, when it terminated her employment at the conclusion of her maternity leave, contrary to s. 13 of the Human Rights Code.
2 Metropolitan denies that it discriminated and applies to have the complaint dismissed on a preliminary basis. In its reply submissions, Metropolitan asks for costs against Ms. CB.
II Background
3 In setting out the background to the complaint, I am not making any findings of fact.
4 Metropolitan is a traditional, high quality, off-set printing company. Easy Print Inc. (”Easy Print”), a company that plays a role in this complaint, but is not a named respondent, produces print materials using digital technology. Both companies operate out of the same Vancouver address.
5 In her complaint, Ms. CB puts the identity of her employer in dispute. I will first set out Ms. CB’s complaint and her version of the facts and then Metropolitan’s response.
The Complaint
6 Ms. CB states that when she was about to commence her second maternity leave, Metropolitan urged her to not look for another job because they wanted her back. She alleges that:
- On May 11, 2009, when there were two weeks remaining on her maternity leave Metropolitan advised her it had no position for her.
- On May 13, she wrote to Metropolitan advising that she did not accept their decision and would like a similar paying position or reinstatement to her previous position.
- On May 15, she was advised that “regrettably, there [was] simply no position for [her] to return to and there [were] no comparable positions available”.
7 Ms. CB alleges that “this was the second time this happened to her by the same employer”. She states that she was originally hired “by them in their digital department Easy Print Inc.” in February 2005. Ms. CB states that she went on her first maternity leave in January 2006. She alleges that when she tried to return to work after her maternity leave, she was told that Easy Print had ceased to exist and “they offer[ed] [her] a position at Metropolitan as a print coordinator (as subbing a lady who just went for maternity leave)”. She accepted the position because she had no other choice.
8 Ms. CB alleges that, now, the same thing is happening to her a second time. She states that although Metropolitan claims that “the two companies [Metropolitan and Print Easy] have nothing to do with one another; she has written proof from management that they in fact have a relationship”.
9 Ms. CB states that on May 25, 2009, Metropolitan told her that the termination of her employment had nothing to do with her maternity leave or “having a baby”. She was informed that “they would have fired her a long time ago because there [was] simply no position available for [her] to take due to reorganization of their company”. The person who spoke on Metropolitan’s behalf said “How could we fire someone who has been with the company for 20 years”.
10 Ms. CB states that she was offered two weeks severance which, in her view, was not sufficient and so she declined it because she feels she deserved more. She states “Well I guess they can fire me, because I took 2 maternity leaves in the total of 4.5 years that I have been a loyal employee.”
The Response and Application to Dismiss
11 Metropolitan’s response is supported by the affidavit by David Winteringham, vice-president of manufacturing, and attached documents including among other things forms filled out by Ms. CB respecting her employment with Easy Print and Metropolitan, and e-mail correspondence from Ms. CB to Metropolitan accepting a position with Metropolitan and discussing a start date for January 2007.
12 Metropolitan states that prior to her employment by it, and from February 9, 2005 to January 13, 2006, Ms. CB was employed by Easy Print as a production assistant. On January 15, 2006, Ms. CB went on maternity leave from her position with Easy Print.
13 Metropolitan states that Easy Print, which operated out of Metropolitan’s premises, is a separate corporate entity, owned and operated by NK and PK who are relatives of the beneficial owner of Metropolitan. Easy Print ceased operating with employees in or about March 2006, and has remained largely inactive doing only minimal business since then. Easy Print had two employees during Ms. CB’s employment, namely herself and her supervisor, MM, who left the company in March 2006.
14 In September and October 2006, Ms. CB sought employment with Metropolitan. She discussed duties, salary, probationary period, and hours of work with Metropolitan’s general manager. Ultimately, she was offered and accepted the position of production coordinator, as a substitute for another employee, AC, who went on maternity leave on or about February 23, 2007. Ms. CB commenced employment with Metropolitan on January 15, 2007, at a salary $9,000 higher than her Easy Print salary. She signed Metropolitan’s “new hire” employee form and other income-related documentation.
15 Ms. CB was a good employee. She went on maternity leave on May 31, 2008. Metropolitan had no issues with Ms. CB’s work performance and hoped that there would have been opportunities for her continued employment after the maternity leave of AC. AC returned from her maternity leave at the end of February 2008 and Ms. CB continued to work as one of the production coordinators until she left on her own maternity leave.
16 In late March or early April, 2009, Ms. CB contacted Metropolitan to discuss her return to work. She was advised that there were no employment opportunities in the pre-press department where she sought a position. She was further advised that Metropolitan had been struggling financially and had been forced to lay off or terminate many employees, including some in her department.
17 The number of employees in Ms. CB’s department had been reduced from seven to four by May 2009 and was further reduced to three employees by August 2009. Metropolitan set out the start date of all employees in the department where Ms. CB was employed and states that she was the most junior employee. Mr. Winteringham deposes that in the last two years the staff at Metropolitan has been reduced from approximately 80 to 50.
18 Metropolitan states that it made a concerted effort to find employment within the company as an alternative to termination or lay-off for all employees, including Ms. CB. Ms. CB was the most junior employee in the department and that was the sole reason her employment was terminated May 11, 2009 (effective June 1, 2009). Metropolitan would have continued her employment if work had been available. In the circumstances, her employment would have been terminated regardless of her maternity leave or pregnancy. Metropolitan had no position for which she was qualified, and indeed, no employment opportunities at all.
19 Mr. Winteringham further deposes that Metropolitan has had many female employees who have taken two or more maternity leaves. It has also had at least one male employee who has taken a paternity leave. These employees have been placed in their position or comparable positions upon their return to work.
20 Metropolitan states that on May 19, 2009, Ms. CB filed a claim against it under the Employment Standard’s Act (”ESA”) which alleged that Metropolitan had terminated her while she was on maternity leave. The complaint stated as written:
My complaint is that I have worked for Metropolitan Fine Printers (and Easyprint — their daughter company — digital department) for a total of 4.5 years. I have been terminated from my previous position at MET while I am still on maternity leave. I was not notified enough time, as I used up all my E.I. benefits with staying on pregnancy leave for a year. To qualify for E.I. benefits again, I would need to work 660 hours. My current company cannot offer any similar positions since they are restructuring the company. Since I am being terminated and will be without any household income, I would like to ask for xx months of pay plus vacation days owed.
21 Metropolitan denied and continues to deny liability. However, following a mediation on June 10, 2009, where Ms. Csizar-Banov was represented by counsel, the matter was resolved through settlement and a payment of a sum to Ms. CB by Metropolitan.
III Analysis and Decision
22 Metropolitan applied and made submissions to have the complaint dismissed pursuant to ss. 27(1)(a), (b), (c), (e) and (g) of the Code which provide:
A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:
(a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal;
(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;
(c) there is no reasonable prospect that the complaint will succeed;
. . .
(e) the complaint or that part of the complaint was filed for improper motives or made in bad faith;
(g) the contravention alleged in the complaint or that part of the complaint ocurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22(3)
23 Ms. CB’s response was in the form of an affidavit only. She is represented by counsel in this application. She did not provide submissions or make any meaningful responses to Metropolitan’s application to dismiss. I have reviewed and considered Ms. CB’s affidavit and its attachments in light of Metropolitan’s s. 27(1) application. I have determined that the application is most appropriately addressed pursuant to s. 27(1)(c) and I have dismissed the complaint as having no reasonable prospect of success for the reasons that follow.
24 Metropolitan also applies in a one sentence submission for costs against Ms. CB. I take it that Metropolitan was signalling its intention to make further submissions if it was successful in this application. I note that the Tribunal’s jurisdiction to order costs arises under s. 37(4) as a result of improper conduct. The Tribunal has had many occasions to consider what amounts to improper conduct and, if Metropolitan intends to pursue a claim for costs, it should review the Tribunal’s caselaw in that regard. The fact that a complaint has been dismissed will not alone result in a cost award.
- 27(1)(c) of the Code
25 In determinations under s. 27(1)(c), the Tribunal considers whether there is no reasonable prospect that a complaint would succeed based on a global assessment of all of the material filed: Wickham v. Mesa Contemporary Folkart Inc., 2004 BCHRT 134 (B.C. Human Rights Trib.), para. 11.
26 In considering applications under s. 27(1)(c), the Tribunal has said that:
[t]he role of the Tribunal, on an application, is not to determine whether the complainant has established a prima facie case of discrimination, nor to determine the bona fides of the response. Rather, it is an assessment, based on all of the material before the Tribunal, of whether there is a reasonable prospect the complaint will succeed: Bell v. Dr. Sherk and others, 2003 BCHRT 63.
The assessment is not whether there is a mere chance that the complaint will succeed, which would be the lowest threshold a complainant would have to meet. Nor is it that there is a certainty that the complaint will succeed, which would be at the highest threshold a complainant would have to meet. Rather, the Tribunal is assessing whether there is a reasonable prospect the complaint will succeed based on all the information available to it. (Wickham and Wickham v. Mesa Contemporary Folk Art and others, 2004 BCHRT 134, paras. 11 and 12)
27 The Tribunal’s approach was affirmed by the Court of Appeal in Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 (B.C. C.A.), paras. 9 and 27.
The first maternity leave
28 Metropolitan submits that it was not Ms. CB’s employer at the time of her first maternity leave; therefore, it is incorrectly named as a respondent and there can be no complaint that it contravened the Code in this instance.
29 In her complaint form and affidavit, Ms. CB makes vague comments about her understanding of how the two companies functioned, her belief that Easy Print was a department of Metropolitan, and that later as a Metropolitan employee, she dealt with an invoice to an Easy Print client. Ms. CB also attached a letter dated March 19, 2007 addressed to “to whom it may concern” which describes her as a valued employee with a bright future and confirms that she had been employed by Metropolitan since February 9, 2005. Metropolitan did not explain or respond to this letter. Neither party filed documents of incorporation respecting Metropolitan or Easy Print.
30 If Ms. CB is right that Metropolitan was her employer at the time of her first maternity leave, there would be no basis for her complaint as, on her own account, at the conclusion of her first maternity leave she did not suffer any discrimination. In fact, she accepted the position of production coordinator, which appeared to be a significant promotion in responsibility and salary.
31 If, on the other hand, Ms. CB does not establish that Metropolitan was her employer during her first maternity leave, the Tribunal would lack jurisdiction to proceed against Metropolitan.
32 Based on this analysis I dismiss Ms. CB’s complaint respecting her first maternity leave pursuant to s. 27(1)(c) as, in either circumstance, it could not amount to a contravention of the Code and so clearly has no reasonable prospect of success.
The second maternity leave
33 I will now address Ms. CB’s allegation that Metropolitan discriminated against her when it terminated her employment on May 11, 2009.
34 Metropolitan states that it terminated Ms. CB’s employment because, as a result of a significant downsizing, it did not have a position for her to return to. Metropolitan submits that had Ms. CB not been on maternity leave her employment would have been terminated earlier. It terminated her employment at the completion of her maternity leave on May 11, 2009, with an effective date of June 1, 2009.
35 Ms. CB does not dispute that Metropolitan was forced to downsize because it was struggling financially, nor does she dispute the impact this had on the department in which she worked. On the contrary, she refers to Metropolitan’s restructuring in her ESA complaint and the lack of position available to her due to Metropolitan’s reorganization in this complaint.
36 I note that Ms. CB feels that she was not paid sufficiently for the hours she worked, that she feels offended or abused by phone calls she received from Metropolitan about work-related matters while she was on maternity leave, and that she takes issue with how Metropolitan determined the start date of its employees.
37 Ms. CB states that she believes that Metropolitan discriminated against her because she took two maternity leaves. On one hand she provides nothing to support this speculative statement and, on the other, does not the deny Metropolitan’s proffered reason for her termination.
38 Having considered all of the material filed I have concluded that there is no reasonable prospect that this portion of Ms. CB’s complaint would succeed.
IV Conclusion
39 The complaint is dismissed pursuant to s. 27(1)(c)