In, Nicola Lao and St. John Ambulance Council for Ontario 2024 HRTO 347, Szymon Rodomar of FCL LLP successfully represented St. John Ambulance Council for Ontario (the “Respondent”) at a recent a preliminary hearing before the Human Rights Tribunal (“HRTO”).

In this Application, the Applicant alleged that she was discriminated against based on sex and family status by her former employer, St. John Ambulance Council for Ontario (the “Respondent”). The Applicant first initiated a Claim before the Ministry of Labour (the “MOL”) against the Respondent and, shortly thereafter, filed her Application with the HRTO; the Applicant made identical factual allegations relating to sex-based and family status discrimination in both proceedings. After her MOL Claim was dismissed, the Applicant still sought to proceed further with her HRTO Application.

In noting the strong similarities between the MOL Claim and the HRTO Application, the Respondent brought a preliminary hearing to dismiss the Application under Section 45.1 of the Code or, alternatively, because the Application was an abuse of process.

Section 45.1 of the Code states that the Tribunal may dismiss an application, in whole or in part, if another proceeding has appropriately dealt with the substance of the application. The provision is meant to prevent duplication of proceedings and re-litigation of issues already determined in another forum. An Applicant dissatisfied with the outcome of a proceeding before another administrative tribunal may not seek to appeal that outcome via the HRTO.

The Respondent detailed the four factors referenced by the HRTO in the context of decisions under Section 45.1 of the Code, which are derived from the Supreme Court’s decisions in British Columbia (Workers Compensation Board) v. Figliola, 2011 SCC 51 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. In doing so, the HRTO accepted the Respondent’s submissions that the MOL had jurisdiction to consider allegations of discrimination contrary to the Code, the issues considered by the MOL were the same as the issues that the Applicant sought to litigate before the HRTO, the Applicant knew the case to be met before the MOL and that it would not be unfair to dismiss the Application under Section 45.1.

The Respondent’s Submissions centered heavily on third and fourth factors which focus, respectively, on the Applicant’s opportunity to know the case to be met before the other tribunal and fairness.

In this regard, the HRTO agreed with the Respondent’s argument that, if the Applicant took issue with the MOL’s procedures or with its substantive reasoning, she should have sought a review of the MOL’s decision by the Ontario Labour Relations Board pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41.

The HRTO further expressed agreement with the Respondent’s position that proceeding to a merits hearing in respect of the Application would necessarily entail a re-hearing of the issues raised before and decided by the MOL, which is precisely the situation Section 45.1 was enacted to prevent.

Ultimately, the HRTO found in favour of the Respondent and dismissed the Application.

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Lawyer Spotlight: Nicole McAuley

1. What is your first memory of wanting to be a lawyer?

When I was 12, I decided that I was going to be a lawyer, even though I did not fully appreciate what that entailed at the time. Although the area of law I wanted to focus on changed a number of times since then, my core goal never wavered.

2. Where did you study law and how did you find that experience?

I studied at the University of Manitoba – Robson Hall. In my third year, I had the opportunity to take an advanced advocacy course taught by a Judge of the Court of the Queen’s Bench. There were only ten students, and every class included a practical opportunity for us to develop our advocacy skills. That course gave me a lot of confidence as I started litigating, and I still use many of the principles that I learnt there in my practice today.

3. How did you begin working at Forbes Chochla Leon?

I began my legal career at FCL LLP (then Forbes Chochla LLP) in 2011 as an articling student. When I was looking for an articling position, I knew I wanted to work at a firm where the lawyers are dedicated to advocacy and I could gain as much litigation experience as possible. I loved the work, the people, and the overall environment from the start and have been proud to call FCL my home ever since.

4. Is there a certain case you worked on that stands out to you? If yes, why?

My first trial stands out the most. I had just been called to the bar, while the plaintiff was represented by a senior lawyer. The trust placed in me by my firm and my client was inspiring and affirmed my many hours of preparation. I benefitted greatly from the mentorship here at FCL, especially from one of our founding partners, Stuart Forbes, as I still do today.

During my cross-examinations of the plaintiff’s witnesses, I was able to obtain evidence that directly contradicted the plaintiff’s version of events. This undermined the plaintiff’s credibility and exposed fatal flaws to the plaintiff’s claim. Consequently, we were successful in defeating the claim and received a great result for our client, including an award of significant damages in our favour.

5. What’s your favourite thing about being a lawyer?

I love the challenge of taking on a fresh case and applying my legal skills to help solve problems. I may spend my morning working on a professional liability file involving a mortgage broker and the afternoon defending an employer in a human rights claim. The variety in my practice constantly keeps me on my toes.

I also really enjoy the employment litigation and directors’ and officers’ claims files, where I often represent not-for-profit agencies. Providing legal support for these organizations allows them to focus on their goals and mandates, and that is very rewarding to me.

6. What’s the best part about working at Forbes Chochla Leon?

The people are the best part of our firm. Our team is exceptional. From the partners to the support staff, we have an exemplary group of dedicated professionals who work together to support each other in service of our clients. FCL is more than just a group of colleagues; we are a family and are each other’s biggest cheerleaders.

7. What do you like to get up to in your spare time?

The majority of my “spare time” is spent with my one year old daughter and one year old puppy, who are both lots of fun. When I have time to myself, I really enjoy running, playing tennis and skiing. I have completed the Chicago Marathon and eight half-marathons, including one just seven months after my daughter was born.

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