HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Candice Calabria

Applicant

-and-

DTZ Barnicke Limited

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: December 18, 2008

Citation: 2008 HRTO 411

Indexed as: Calabria v. DTZ Barnicke

INTRODUCTION

1This is an interim decision in respect of an Application filed September 19, 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 and services on the grounds of sex and family status.

2The respondent seeks early dismissal of the Application which, on review, I am satisfied is a request for deferral of the Application pending the outcome of the applicant’s claim for termination and severance pay brought under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the “ESA”). I am satisfied, based on her response, the applicant also understands the issue to be a request for deferral. The respondent also seeks disclosure of an Appendix to the applicant’s ESA claim form.

FACTS AND SUBMISSIONS

3The applicant attached a number of documents to her Application, including a copy of her ESA claim for termination pay, severance pay, leaves of absence and reprisals. The ESA claim is dated September 19, 2008, the same date that appears on the Application to this Tribunal. No decision of the ESA claim has yet been made.

4The Application claims “General Damages, Special Damages, Mental Anguish and Interest”, and seeks orders requiring the respondent to develop anti-discrimination policies and receive human rights training. The ESA form submitted with the Application does not identify the relief sought in that proceeding.

5The respondent requested the applicant disclose an “Appendix A” referred to in her ESA claim. The respondent also indicated that paragraphs 6 and 11 of the Application (apparently a reference to Schedule A of the Application) lacked sufficient particulars to allow a Response.

6In Reply, the applicant provided more particulars and documents related to paragraphs 6 and 11. The applicant did not however disclose “Appendix A”. The applicant opposed deferral for the following reason:

Although both proceedings arise out of the same or similar facts the Applicant is seeking remedies that are discreet and unique to the Human Rights Tribunal and the Director of Employment Standards respectively. The remedies sought by the Applicant do not overlap…

DECISION

7Deferral 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. Some 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 types 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.

8The Tribunal has said that it will usually 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 another matter is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.

9Deferral is not automatically indicated simply because the parties are involved in other legal proceedings. Section 40 of the Code requires the Tribunal to adopt procedures and practices that offer the best opportunity for a fair, just and expeditious resolution of the merits of an application.

10In this case the applicant agrees that the ESA claim is based on the same or similar facts. Further, I find that the remedies that might be obtained under the ESA and under the Code do in fact overlap. The award power set out in s. 45.2 of the Code is considerably broader than that available under the ESA, and is certainly broad enough to encompass the compensatory orders, including reinstatement, that might be available under the ESA.

11Having said the above, this is not a case where there appears to be a good reason to defer. The ESA process might, if taken to its conclusion, consider some of the same human rights issues raised in the Application, but it cannot consider all of them, not having the same jurisdiction as this Tribunal.

12It appears to me that there is no potential for conflicting findings of fact or law, because, on the information before me, it is not clear that the ESA claim, having been filed no earlier than the Application, is anywhere near the decision stage.

13Finally, there appears to me to be no potential for double recovery. It is open to the respondent to ask any tribunal to take account of damages awarded in a related 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.

14While 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. 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.

15As noted above, both parties claimed the right to make further submissions on the issue of deferral. In light of the fact that the parties have already exercised their right to make submissions, the granting of any further opportunity is a matter of discretion for the Tribunal. I do not consider it appropriate or necessary to invite further submissions, particularly given that I have accepted that the ESA claim is based on the same or similar facts, and taken into account that, in her ESA claim, the applicant could have claimed any remedies that might be obtained under the ESA.

16The Tribunal will not defer this matter pending the resolution of the ESA claim. As the parties have agreed to attend mediation, I request the Registrar to schedule a mediation session.

17“Appendix A” of the ESA claim appears at least arguably relevant to this Application, at least to the issue of any remedy that might be considered in this Application. The Tribunal’s Rules do not require the applicant to file supporting documents at this point, but the Form does instruct an applicant to attach a copy of any document which started another proceeding to the Application. Absent extraordinary circumstances, the complete document is required.

ORDER

18The Tribunal therefore orders as follows:

(a) The applicant is ordered to serve Appendix A to her ESA claim form on the respondent and file it with the Tribunal, by December 23, 2008.

I am not seized of this matter.