Kaj v. Orsini Bros. Inns, 2009 HRTO 170

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne Kaj

Applicant

-and-

Orsini Bros. Inns Inc. o/a Doubletree Resort Lodge and Spa, Robert Orsini and Jennifer Hipwell

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: February 18, 2009

Citation: 2009 HRTO 170

Indexed as: Kaj v. Orsini Bros. Inns

1This is an application filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). By decision dated January 6, 2009, the Tribunal raised the issue of whether this Application should be deferred pursuant to s. 45 of the Code pending the conclusion of a proceeding under the Employment Standards Act (the "ESA proceeding") and set out a schedule for receiving submissions from the parties. All submissions have now been received and considered.

2The 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 the ESA proceeding.

3Deferral 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.

4While deferral is not automatically invoked simply because the parties are involved in other legal proceedings, it is not a requirement for deferral that the other legal proceeding be dealing with precisely the same issues as are raised in the human rights application. Rather, the fundamental question for this Tribunal is whether or not it is fair, just or expeditious to defer an application.

5Some 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.

6The applicant filed a claim under the ESA against the corporate respondent in respect of the events giving rise to this Application. An investigation was conducted by an employment standards officer who concluded that the respondent had violated the emergency leave provisions of the ESA. An Order to Pay in the amount of $15,113.06 in favour of the applicant was made by the employment standards officer. The award includes damages under various heads including damages for lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering. The respondents and the applicant have each commenced a review of the employment standards officer's decision. The applicant has advised the Tribunal that a mediation was scheduled for January 23, 2009, but no information has been provided as to the outcome of that mediation or when hearing dates will be scheduled before the Ontario Labour Relations Board.

7The applicant submits that each of the two proceedings she has commenced raise distinct issues: that the ESA proceeding addresses the respondents' violation of her entitlement to emergency leave, whereas this Application raises the issue of whether she was discriminated against because of a disability. While the applicant is correct in stating that these two legal issues are not necessarily identical, that does lead to a conclusion that this Application ought not be deferred.

8The factual issue raised by the applicant in both proceedings is that her employment was terminated after she took some time off work for medical reasons. In both proceedings, she wants a remedy for the income she lost as a result of her termination and for the emotional consequences of the respondents' actions. While it is correct that there are two statutory entitlements that may arise from this factual situation, the underlying facts and the remedies sought in both proceedings are identical. In these circumstances, and especially where the applicant already has received a remedy for her losses through another proceeding, it is not fair, just or expeditious for this Tribunal to hear and consider all of the same evidence that already was heard and considered in the ESA proceeding and then, if a Code violation were found, to award essentially the same remedies that already have been awarded in the ESA proceeding. While there is always the possibility that the employment standards officer's Order to Pay will be overturned on review, deferral of this Application accounts for this possibility by allowing the applicant to request to re-activate her Application should this occur.

9In these circumstances, the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of the ESA proceeding. Accordingly, the case resolution conference currently scheduled for March 5 and 6, 2009 is hereby cancelled.

10If the applicant intends to proceed with this Application following the conclusion of the ESA proceeding, the applicant is directed to contact the Registrar – Transition no later than 60 days after the conclusion of the ESA proceeding to make a request to proceed, and shall indicate the date the ESA proceeding concluded and include a copy of any decision or order in the ESA proceeding.