Baker v. Sears Canada, 2009 HRTO 1793

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sarah Baker

Applicant

-and-

Sears Canada Inc. and Monique Binder

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: October 27, 2009

Citation: 2009 HRTO 1793

Indexed as: Baker v. Sears Canada

WRITTEN SUBMISSIONS BY

Sarah Baker, Applicant ) On her own behalf

Sears Canada Inc. and ) Mathias Link, Counsel

Monique Binder, Respondents )

BACKGROUND

1The Application alleges discrimination and harassment on the basis of disability, and reprisal, in employment. In an Interim Decision in Baker v. Sears Canada, 2009 HRTO 1014 (dated July 9, 2009), the Tribunal refused the respondents' request to dismiss the Application, ordered them to file a full Response, and invited submissions from the applicant in respect of the respondents' request that the Tribunal exercise its discretion to defer dealing with the Application pursuant to Rule 14.1 of the Tribunal's Rules of Procedure.

2The respondents filed submissions on July 31, 2009, and additional documents and the Form 2 on August 24, 2009. The applicant filed submissions in response to the respondents' request to defer on August 11, 2009. This Interim Decision addresses the issue of whether to defer the Application pending the conclusion of the civil proceeding.

PARTIES' POSITIONS

3The respondents argue that the applicant's civil claim, which I previously found to be a distinct legal proceeding for the purposes of the Tribunal's jurisdiction to deal with the Application, rests on substantially the same factual background as the Application. Further, they argue that the parties completed pre-hearing disclosure and attended a pre-trial conference on June 8, 2009. According to the respondents, the case was expected to go to trial some time in September or October 2009. The respondents therefore submit that it is appropriate to defer the Application in order to reduce the risk of adjudicative duplication.

4The applicant argues that the issue of deferral should be decided along the same lines as the dismissal request. She submits that there are no grounds for putting her Application on hold in light of the Tribunal's Interim Decision with respect to its jurisdiction to entertain the Application. She argues that while there may be some "situational similarities" between her wrongful dismissal action and her Application, the legal issues are "completely separate".

ANALYSIS AND DECISION

5Pursuant to the Rules, the Tribunal may defer consideration of an application on such terms as it may determine, and on its own initiative. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. The considerations in deciding whether to exercise discretion and defer are distinct from the jurisdictional question about whether the Tribunal should deal with an application where related facts are at issue in a civil proceeding.

6Absent 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. While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held:

Some of the factors that may be relevant in deciding whether to defer consideration of an application 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. (Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10).

7There is a public interest in avoiding the duplication of adjudicative proceedings hearing the same evidence and deciding some or all of the same issues. One of the advantages of bringing a discrimination claim as part of a wrongful dismissal action is that the court will determine underlying facts that are integral to the issues both of whether the employment was terminated with just cause, and whether it was discriminatory. While these two questions are distinct legal issues leading to distinct legal remedies, they rely on interrelated and often identical facts.

8In this case, it is inevitable that the Tribunal will be asked to make findings of fact and address issues that will also be before the court. For this reason, even though the other proceeding does not make out an identical claim, it is appropriate for the Tribunal to exercise its discretion and defer the Application pending the outcome of the civil trial.

9The 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 other proceeding has been concluded.