Esther Kafka v. Allstate Insurance Company of Canada, 2009 HRTO 1880

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Esther Kafka

Applicant

-and-

Allstate Insurance Company of Canada

Respondent

INTERIM DECISION

Adjudicator: Dale Hewat

Date: November 5, 2009

Citation: 2009 HRTO 1880

Indexed as: Kafka v. Allstate Insurance Company of Canada

1This is an Application filed June 26, 2009 under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to address the respondent’s request for deferral in light of a parallel civil court proceeding.

2The subject matter of the Application relates to the respondent, Allstate Insurance Company of Canada’s (“Allstate”) compensation restructuring package that was introduced on September 1, 2007 and affected the applicant who was an agent at Allstate at the time. In her Application, the applicant submits that Allstate gave its agents a 24 month guaranteed income period as notice of the change to the compensation structure. The applicant alleges that a number of male agents were also offered an extended pay period over and above the 24 month pay guarantee that she was offered and that she was subject to discrimination on the basis of gender. Her original human rights complaint was filed on February 28, 2008. On May 20, 2009, the applicant also commenced a civil court action, as part of a class action proceeding, alleging that Allstate’s compensation restructuring package constituted constructive dismissal and breaches of various provincial employment standards legislation.

3The Tribunal wrote to the parties on August 25, 2009 requesting submissions on the respondent’s position that the issues in dispute in the Application are the subject of a civil court proceeding. The Tribunal is in receipt of the respondent’s submissions requesting that the Application be deferred pending the outcome of the civil action. The Tribunal has not received responding submissions from the applicant to clarify her position on the issue of deferral. The deadline set out in the Tribunal’s correspondence on August 25, 2009 for the exchange of submissions has passed.

DECISION

4Deferral 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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 respondent submits that both the Application and Statement of Claim reveal that the issues in both proceedings are common and that the monetary relief sought is based on the same underlying facts. Specifically, the respondent notes the applicant, in the Application, is seeking a financial remedy including the guarantee of income over the 24 month period and the enhanced pay period. Concurrently, the respondent claims that the remedial relief in the civil action also includes the 24 month pay period and compensation for alleged bad faith on the part of Allstate and such other relief as the Court deems appropriate. The respondent submits that the issues and remedial relief raised in the Application will be dealt with in the civil action which is advancing. The respondent also points to the potential prejudice to it if the Application is not deferred with respect to the possibility of inconsistent findings which would require further expenditure of judicial, tribunal or other legal resources.

7In the circumstances of this case, I find that deferral is appropriate. Given the overlapping factual matters and the stage of the civil court proceedings, the factors favouring deferral of this Application outweigh the factors favouring the Tribunal proceeding with the Application. The Application will be deferred pending the outcome of the applicant’s civil court proceeding. Where a party wishes to proceed with an application which has been deferred, the party must contact the Registrar-Transition no later than 60 days after the conclusion of the other proceeding.

8I am not seized of this matter.