Rita Qubti v. SAP Canada Inc., 2009 HRTO 1995

Human Rights Tribunal of Ontario

B E T W E E N:

Rita Qubti

Applicant

-and-

SAP Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Janice Sandomirsky

Date: November 24, 2009

Citation: 2009 HRTO 1995

Indexed as: Qubti v. SAP Canada

1This is an Application filed June 8, 2009, under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights Complaint (the “Complaint”) was filed with the Ontario Human Rights Commission (the “Commission”) on March 16, 2007, and abandoned upon filing this Application with the Tribunal.

2This Interim Decision addresses the respondent’s request to defer this matter pursuant to section 45 of the Code on the basis that there is a legal proceeding before the Pennsylvania Human Relations Commission (“PHRC”) dealing with the subject matter of the Application.

3The Tribunal asked the parties for submissions on the deferral issue. The applicant did not file submissions. The respondent filed a submission in response to the Tribunal request dated November 18, 2009, in addition to the material filed as its Response to the Application.

4Deferral of an Application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on the facts or law. An application will not be automatically deferred, however, only on the basis that the parties are involved in other legal proceedings. The fundamental question for the Tribunal is whether or not it is fair, just or expeditious to defer an application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

5In this case, the applicant filed the same human rights complaint based on the same set of facts and involving the same parties in both Ontario and Pennsylvania. In response to the PHRC complaint, the respondent brought a motion to dismiss on the grounds that the PHRC lacks jurisdiction. The respondent’s motion was based on the fact that the actions complained of occurred in the United States and Canada but the applicant was a resident of Canada, employed by a Canadian company, and worked in Toronto. The respondent has not filed a response to the Ontario claim on the basis that it is challenging the jurisdiction of the PHRC to hear the claim.

6The motion to dismiss the Pennsylvania claim was filed on September 7, 2007. To-date, the PHRC has not ruled on the motion. The respondent asks that the Tribunal defer this application until the PHRC has ruled on its motion to dismiss. It submits that the PHRC process remains active and the motion to dismiss may be granted or denied at any time. If denied, the complaint will be investigated and, if necessary, conciliation or enforcement efforts will follow. The respondent notes that, although the period of time for which this matter has been format appears lengthy, it is not unheard-of.

7The respondent further notes that, if within one year of filing a complaint with the PHRC, the complaint is not yet resolved, the complainant may bring action in the courts of common pleas in the Commonwealth of Pennsylvania. The complainant is not required to provide the PHRC unlimited time to process, investigate or resolve his/her complaint. The complainant has not elected to do so and, the respondent submits, the matter remains open as the applicant has not taken any steps to force either a resolution or a closure at the PHRC.

8After reviewing the respondent’s submission, I conclude that it would not be reasonable to defer consideration of the Application before the Tribunal. The applicant has already waited over two years for either the Commission, and now the Tribunal, or the PHRC to consider her human rights claim. In light of the length of time that has passed with neither jurisdiction considering the applicant’s human rights complaint, and no steps being taken to pursue the matter further before the PHRC, fairness and justice dictates that the application not be deferred any longer.

9The Tribunal has scheduled the case to be heard on February 4, 2010. The respondent, however, has not filed a Response on the merits. In preparation for that hearing, the Tribunal orders the following:

1. The respondent will file a response within 14 days of this Interim Decision.
2. If the respondent is challenging the Tribunal’s jurisdiction to consider this matter, it will include those submissions as part of the response.
3. The applicant will have ten days to respond to any jurisdictional submissions.
4. The respondent will have five days to reply to the applicant’s response to the jurisdictional submissions.

10The parties have received a letter dated October 21, 2009, from the Registrar-Transition setting out a schedule for them to file additional materials for the hearing.

ORDER

11The respondent’s request to defer the Application is dismissed.