Baghdasserians v. 674469 Ontario, 2008 HRTO 404

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norair Baghdasserians Applicant

-and-

674469 Ontario Ltd. o/a Scarboro Subaru Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: December 17, 2008 Citation: 2008 HRTO 404 Indexed as: Baghdasserians v. 674469 Ontario

WRITTEN SUBMISSIONS BY

Norair Baghdasserians, Applicant ) Gary Wiseman, Counsel 674469 Ontario Ltd. o/a Scarboro Subaru, ) David Greenwood, Respondent ) Counsel

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on August 19, 2008. The applicant alleges he was terminated from his employment with the respondent on the basis of his creed and age contrary to section 5 under Part 1 of the Code.

2On receiving the Application, the Tribunal asked the parties for written submissions on whether, in accordance with Rule 14 of the Tribunal’s Rules of Procedure, it would be appropriate to defer consideration of the Application pending the resolution of a civil action initiated by the applicant against the respondent. The respondent and the applicant both filed written submissions.

3When the respondent subsequently filed a Response to the Application the respondent asked the Tribunal to dismiss the Application because “a claim based on the same facts as the application has been filed in civil court requesting a remedy based on the alleged human rights violation”.

4The Tribunal then asked the parties for written submissions on the respondent’s request that the Tribunal dismiss the Application outright. (see Baghdasserian v. 674469 Ontario, 2008 HRTO 221). This Interim Decision deals with both the request to dismiss and the request to defer.

BACKGROUND

5The applicant states in his Application that he worked for the respondent (a car dealership) for approximately 22 years in the respondent’s parts department. The applicant contends that during this time he did not work evenings or Saturdays for religious reasons and that this accommodation was knowingly made by the respondent.

6Based on the Application and Response it appears that the respondent decided in January 2008 to extend business hours on Tuesday evenings. The respondent sent a letter on January 29, 2008 asking staff to agree to work these extra hours and to work Saturdays, if required, beginning April 1, 2008. The letter states that if an employee did not agree in writing to work these hours the employee was to consider the letter as a Notice of Termination with eight weeks notice.

7In response the applicant indicated to the respondent that he did not agree to work these additional hours. According to the applicant, he did so because the respondent already knew and accepted that he was unable to work evenings or Saturdays for religious reasons. According to the respondent, the applicant did not make it known that he wished to continue working with the respondent and that he was seeking an accommodation for religious reasons. On March 31, 2008 the applicant was given a Record of Employment marked “Quit” thus ending his employment with the respondent.

8The applicant commenced a civil court action against the respondent for constructive and/or wrongful dismissal and breach of contract by statement of claim dated May 21, 2008. The respondent filed a statement of defence dated June 6, 2008 and the applicant’s reply is dated June 17, 2008. All of these documents have been provided to the Tribunal.

DECISION

Dismissal of Application

9Section 34(11) of the Code bars an applicant who has filed a civil action claiming remedies for human rights violations from bringing the same matter to the Tribunal:

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

Section 34(11) is to be read in tandem with section 46.1, which explicitly gives civil courts the authority to order remedies for human rights infringements:

46.1(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

10The above provisions came into effect on June 30, 2008.

11The respondent submits that the facts and evidence relied upon by the applicant in his civil action are substantially the same as those relied upon in the Application and that the claims for damages in both proceedings are both based on loss of employment and income and mental stress.

12The applicant submits that the two proceedings are distinct in that the court action deals with monetary issues for damages for loss of employment income while the Application deals with an allegation of discrimination and a breach of the Code.

13The specifics of the applicant’s civil action can be found in his statement of claim. The claim indicates that the applicant seeks $50,000 in damages for constructive dismissal and/or wrongful dismissal as breach of a contract of employment, including loss of salary, bonus, and benefits as well as damages in tort for bad faith discharge and makes the following allegations:

10. The plaintiff states that there was a substantial or material change to the essential terms of the Contract, and that no reasonable notice was given of the fundamental changes of the Contract, such that there was constructive dismissal. The plaintiff states that the Defendant terminated the Contract without adequate notice or compensation in lieu of notice.

11. As a result of such unilateral termination of his employment with unreasonable notice or compensation in lieu thereof, given his age of 63 and length of service of 22 years, the Plaintiff has suffered damages. The Plaintiff has to date been unable to secure alternative employment despite efforts to mitigate his damages.

12. Furthermore, in consequence of the manner in which the Contract was terminated and failure to give the Plaintiff reasonable notice or compensation in lieu thereof, the Plaintiff has suffered mental distress and claims further compensation as well. The Plaintiff further pleads that the reasonable notice period should be extended as per the “Wallace” factor, due to the conduct and actions of the Defendant and of not providing a reference letter.

14Based on my review of the statement of claim and having considered the submissions of the parties I am satisfied that the civil action is a claim specifically for wrongful or constructive dismissal on the grounds that the respondent’s decision to terminate his employment contract was without cause. There is no claim that the applicant’s rights under the Code were infringed and no remedy is sought for an alleged breach of the Code. On this basis, I find that the Application is not barred by section 34(11) of the Code.

Deferral of Application

15The respondent submits that the Tribunal should defer its proceedings on the basis that the facts and evidence at issue in the civil action are substantially the same as those in dispute in the Application. Further, the respondent submits the damages being sought by the applicant in his action are comprehensive and would compensate him for the damages he seeks in his Application. The respondent submits that a decision in the civil action should be rendered first to avoid the possibility of a “double recovery”. This would also avoid multiplicity of proceedings in respect to the same subject matter, the waste of court and tribunal time and resources as well as undue expense for the respondent.

16The applicant objects to deferral. In his view the civil action and the Application are clearly distinguishable on both the facts and damages sought. The applicant submits that the Application will determine whether there was discrimination based on creed and age and that damages will arise from the violation of the Code. There will be no double recovery. Any added expense for the respondent is a result of the respondent’s own actions in terminating the applicant (which gives rise to the court action) and discriminating against the applicant (which gives rise to the Application).

17The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative (Rule 14.1).

18Deferral 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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

19Some 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.

20The Tribunal has said that it will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues (Krieger v. Toronto Police Services Board, 2008 HRTO 270). The Tribunal has also deferred an application where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution (Klein v. Toronto Zionist Council 2008 HRTO 228). In such circumstances, the Tribunal is concerned about the prospect of concurrent overlapping proceedings and the potential for conflicting findings of fact or law. Where the civil action is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.

21However, I have determined that the circumstances before me do not warrant deferring the Tribunal proceeding. While the civil action and the Application involve many of the same events, they deal with different legal theories. This is not a case where the applicant has engaged another process that will consider and determine the same human rights issues he raises in his Application. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

22Moreover, on the information before me, it is not clear how close the civil action is to its resolution. It appears that the pleadings stage is closed, and the parties have attended mediation. The action has yet to go to pre-trial and no date has been set for trial. Although it appears that the applicant’s civil action is proceeding under the simplified procedures under Rule 76 of the Rules of Civil Procedure, I have not been provided with information as to when that action is likely to be considered and resolved.

23With respect to the respondent’s expressed concern about the potential for double recovery, it is open to the respondent to ask either the court or the Tribunal to take account of damages awarded in the other proceeding in an assessment of the appropriate damages, if any, in the matter before it. This is an issue raised by the circumstances, regardless of whether this Application is deferred.

24Section 40 of the Code requires the Tribunal to adopt procedures and practices that offer, in the Tribunal’s opinion, the best opportunity for a fair, just and expeditious resolution of the merits of an application. So while it may be preferable for two proceedings to unfold sequentially rather than concurrently in order to lessen the possibility of conflicting findings of fact, there is no obvious reason in this case why the Tribunal’s processes should be deferred for an undetermined period of time given the Tribunal’s goal of ensuring the fair, just and expeditious resolution of the merits of matters before it.

25Therefore, the Tribunal will not defer this matter pending the resolution of the civil claim. As the parties have agreed to attend mediation, the Registrar is directed to schedule a mediation session on this Application.