Jakmakjian v. Atlas Placement Services Inc., 2009 HRTO 1179

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anto Jakmakjian

Applicant

and

Atlas Placement Services Inc. and Adam McCormick

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: July 30, 2009

Citation: 2009 HRTO 1179

Indexed as: Jakmakjian v. Atlas Placement Services

1This Interim Decision concerns whether the Tribunal should defer an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant, Anto Jakmakjian, filed the Application on March 25, 2009 and alleges discrimination in employment on the ground of disability. The applicant names Adam McCormick as the respondent. Mr. McCormick is the President and sole shareholder of Atlas Placement Services Inc. The applicant claims that the respondent knew the applicant was off work for medical reasons and that this was a factor in the respondent’s decision to place the applicant on a temporary layoff.

2The Response was filed on May 12, 2009. The Response indicates that Atlas Placement Services Inc. was the organizational respondent. The Response should have identified Atlas Placement Services Inc. as a named respondent in the proceeding but I am satisfied this was the personal respondent’s intention and the style of cause is amended to include Atlas Placement Services Inc. as the corporate respondent.

3On June 9, 2009 the respondents filed a Request for Order during Proceedings to have the Application deferred pending the outcome of a claim filed by the applicant under the Employment Standards Act, 2000 S.O. 2000, c. 41 (ESA). This claim was made on the same day the applicant filed his Application with the Tribunal. The respondents argue that the applicant’s claim under the ESA concerns the same allegation – that the applicant’s termination was motivated by improper considerations. Furthermore, the respondents state that they are relying on the same defence in response to the ESA claim as outlined in the Response - that the applicant’s layoff resulted from the significant financial downturn the corporate respondent was experiencing, a fact the applicant knew. The respondents also provided a letter from an Employment Standards Officer which states that a meeting was being scheduled with the parties for June 22, 2009 and which lists a number of documents the respondents were required to provide.

4The Tribunal has received no response from the applicant to the respondents’ request for a deferral.

5On July 6, 2009 the respondents wrote the Tribunal to state that the applicant has also filed a claim with the Workplace Safety and Insurance Board.

6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1).

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

8Some 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.

9In the circumstances of this case, I find that deferral is appropriate. While there are some distinct differences in the nature of the ESA claim and the Application, most notably the allegation of discrimination contained in the Application, both the ESA claim and Application overlap in that they both focus on a specific action- the respondents’ decision to layoff the applicant. I find that it would not be constructive to have two proceedings concurrently consider the facts surrounding this action. I note the ESA claim, initiated at the same time as the Application, is already proceeding. Consequently, the Application will be deferred pending the outcome of the applicant’s claim under the ESA.

10The 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 applicant’s claim under the ESA has been concluded.

11I am not seized of this matter.