Chan v. Drake International, 2009 HRTO 1067

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Chan

Applicant

-and-

Drake International Inc.

Respondent

INTERIM decision

Adjudicator: Brian Cook

Date: July 17, 2009

Citation: 2009 HRTO 1067

Indexed as: Chan v. Drake International

WRITTEN SUBMISSIONS BY

Catherine Chan ) On her own behalf

Drake International Inc. ) Kimberly Morris, Counsel

1This Interim Decision addresses the issue of whether the Application filed by Catherine Chan (“the applicant’) against Drake International Inc. (“the respondent”) should be deferred pending the outcome of a claim filed by the applicant under the Employment Standards Act, 2000, S.O. 2000, c.41 as amended (the “ESA claim”).

2The Application was filed on January 12, 2009 and alleges discrimination in employment on the grounds of sex and pregnancy. In its Response, the respondent asked that the Application be deferred until the ESA claim had been disposed of.

3In an earlier Interim Decision, 2009 HRTO 441, the Tribunal asked for submissions on the deferral request. Those submissions have now been received and reviewed.

4The applicant submits that the Application should not be deferred. She concedes that there may be some overlap between the Application and the ESA claim, but argues that the ESA process may not take into account all of the human rights issues raised in the Application. She suggests that a resolution of the Application might also resolve the ESA issues, and that if this happened, she would withdraw the ESA claim. She states that the ESA claim is in the early stages and that she has no idea how long it might take to resolve it.

5The respondent submits that the Application should be deferred to ensure that there are not two concurrent proceedings dealing with the same issues. The respondent states that the applicant has not provided a copy of the ESA claim and that in the absence of the ESA claim it would be unfair to proceed with the Application.

6I note that the applicant did provide a copy of the ESA claim with her Application. The respondent appears to be aware of the details of the ESA claim. However, to ensure that the respondent has a complete copy of the Application, the Tribunal will resend a copy of the Application, including the ESA claim, to the respondent.

Deferral considerations

7The Tribunal has consistently found that the fact that an applicant has started a different process arising out of the same circumstances that gave rise to the Application is not in and of itself a reason to defer dealing with an Application.

8In Calabria v. DTZ Barnicke, 2008 HRTO 411, a case referred to by both parties in their submissions, the Tribunal stated:

Deferral 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.

9Leblanc v. Toronto (City), 2009 HRTO 960 and Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 966 are two recent decisions dealing with requests to defer to a concurrent arbitration proceeding. In those decisions the Tribunal stated:

[T]he initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same facts and human rights issues are being raised before another decision-maker with the authority to deal with those issues.

10In the case before me, the extent to which the Employment Standards Officer may have the authority to deal with the alleged human rights issues is not clear. The ESA does not expressly incorporate the Code or give decision makers authority to resolve human rights issues. However, the Supreme Court of Canada has found that statutory tribunals that are empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the Code to a matter properly in front of them (Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14). It is not clear if this applies to a decision of an Employment Standards Officer although it would clearly apply to the Ontario Labour Relations Board (OLRB) which hears appeals under the ESA from decisions of an Employment Standards Officer.

11In Lutgens v. Oxford University Press, 2009 HRTO 797, and Matechuck v. OLG at Thousand Islands, 2009 HRTO 324, the Tribunal deferred Applications because of an ESA proceeding alleging a contravention of the ESA on the grounds of pregnancy. In both of those cases, the Employment Standards Officer had made findings that were under appeal to the (OLRB). The fact that the ESA proceeding was well under way with a pending appeal appears to have been a factor in those cases.

12A reason not to defer an Application is that deferral will likely postpone the hearing of the Application by the Tribunal. In general, it is preferable to adjudicate cases close in time to the events in question and applicants and respondents are entitled to expect the Tribunal to deal with Applications in a timely fashion. The delay in adjudicating the Application may be longer if the other proceeding is in the early stages.

13However, in my view, it does not follow that an Application should not be deferred if the other proceeding is only in the early stages.

14If a person has commenced another proceeding that raises the same human rights issues, it may be appropriate for the Tribunal to defer the Application until the other proceeding is complete, even if the other proceeding is still in the early stages.

15First, it may not be fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Secondly, there is a potential for inconsistent findings in the two proceedings. Inconsistent findings by two different adjudicative bodies may occur because the cases are presented differently or because different statutes or rules may apply. However, it is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues.

16In this case, the circumstances giving rise to the Application and the ESA claim are the same. The ESA application alleges that the respondent’s conduct “can be characterised as a pregnancy leave reprisal prohibited under the Employment Standards Act, 2000 and the discrimination under the Ontario Human Rights Code.” If the ESA claim and the Application proceed at the same time, the parties will be required to concurrently address substantially the same issues in two different forums. There is a potential for inconsistent findings.

17The remedies that are available to a person under the ESA and the Code are potentially quite similar, depending on the nature of the allegation. Pursuant to section 104(1) of the ESA, if an Employment Standards Officer finds that an employer has contravened the pregnancy leave provisions of the ESA, the Officer may order that the employee be compensated for loss or that she be reinstated, or both compensated and reinstated. Compensation can include compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering. While not identical, the remedies potentially available under the ESA in pregnancy cases are thus similar to the remedies that are available under the Code and the remedies that are available, while not identical, are similar.

18In light of these considerations, I am satisfied that the Application should be deferred until the ESA proceeding has been concluded or abandoned. The Tribunal’s Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.

19I am not seized of this matter.