Klein v. Toronto Zionist Council, 2008 HRTO 189

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Klein

Applicant

-and-

Toronto Zionist Council

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: October 24, 2008

Citation: 2008 HRTO 189

Indexed as: Klein v. Toronto Zionist Council

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto ON M7A 2C7 Phone (416) 326-1312 / 1-866-598-0322 Fax (416) 326-2199 / 1-866-355-6099 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

INTRODUCTION

1This is an Application filed August 18, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The Application alleges discrimination in employment based on family status. The purpose of this interim decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of another related proceeding.

2Section 45 of the Code confirms the Tribunal's authority to defer consideration of an application. Under Rule 14 of the Tribunal's Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

3Upon receipt of this Application, the Tribunal requested submissions from both parties about whether the Tribunal should defer dealing with this Application pending the resolution of an ongoing small claims court action dealing with the subject matter of the Application. The parties were to file their submissions by September 24, 2008. The Tribunal has received submissions from counsel for the respondent but has not received any further materials from the applicant on the question of deferral.

FACTS AND SUBMISSIONS

4The applicant filed a small claims court action on April 7, 2008 arising out of the termination of his employment by the respondent who is his former employer. A pre-trial conference was held on June 12, 2008 and the case has been set down for trial. A trial date had been set for October 1, 2008 but that date has since been adjourned and another one is pending.

5The small claims court action alleges that the plaintiff, who was employed by the defendant employer to provide computer and office related services, was constructively dismissed. He alleges that he was given 6 months notice of termination in or about November, 2006 but that, shortly thereafter, he was unable to continue working as the terms and conditions of his employment were unilaterally changed by the employer. He has claimed $10,000.00 in damages arising out of the termination.

6In his Application to the Tribunal, the applicant has alleged that the termination that is the subject of his small claims court action was the result of a campaign by the employer to drive out all members of his family from the workplace, that the real reason for his termination was the employer's dissatisfaction with his mother, the former Executive Director of the organization, and that he was targeted because of his connection to her. He has asked for a monetary remedy of $10,000.00, the amount of money he would have earned in the past two years had he continued to be employed by the respondent.

7Counsel for the respondent has raised a number of arguments in his submissions on the question of deferral. He argues that the facts and evidence being relied upon by the applicant in this Application are the same as in the civil action, that the monetary relief being claimed in both forums is based on remuneration relating to termination from employment, that a contemporaneous proceeding could result in double recovery for the applicant and that a multiplicity of proceedings is undesirable. He further submits that the respondent, a non-profit organization, will be put to undue expense if it is forced to respond to both proceedings at the same time.

8In the body of his Application, the applicant indicates that he has not asked for a ruling and a remedy on the alleged human rights violations in the small claims court action. In response to a question about whether there has been a court action based on the same facts as the application being filed, he has answered in the negative. When requested to do so by the Tribunal, he sent in the statement of claim filed at the small claims court. He has not, however, responded to the Tribunal's request that he make submissions on the issue of deferral.

DECISION

9Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

10Some of the factors that may be 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 type 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.

11In this case, the most significant factor is the overall fairness to the parties, given the stage of the other proceeding.

12Although the civil action does not raise human rights issues or include a claim for human rights remedies, the underlying events giving rise to both the civil action and the Application to the Tribunal are the same. Many of the facts supporting this Application appear, from the materials filed, to be substantially the same as the facts relied upon in the civil claim. The civil proceeding is nearing its conclusion, and the parties have put some effort into pre-trial processes such as disclosure of documents and attendance at a pre-trial conference. In these circumstances, given the stage of the civil proceeding, the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of that action. The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the civil claim has been concluded.