Martel v. CBV Collection Services, 2009 HRTO 2221

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Martel

Applicant

-and-

CBV Collection Services Inc.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: December 18, 2009

Citation: 2009 HRTO 2221

Indexed as: Martel v. CBV Collection Services

INTRODUCTION

1The purpose of this Interim Decision is to request written submissions from the parties as to whether the Tribunal should dismiss or defer the Application.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on August 17, 2009, which alleges that the respondents discriminated against him with respect to employment because of his disability. Specifically, the applicant alleges that the respondent terminated his employment on July 18, 2008 because of his disability.

3The respondent filed a Response on November 4, 2009, which denies the allegation of discrimination. The respondent states that it terminated the applicant's employment for a non-discriminatory reason. The respondent also requested that the Tribunal defer the Application because the facts of the Application are part of another proceeding that is still in progress. The respondent attached a Plaintiff's Claim for wrongful dismissal that the applicant filed with the Small Claims Court of the Superior Court of Justice on August 26, 2009.

4The applicant did not file a Reply to the Response.

DISMISSAL

5Rule 13.1 of the Tribunal's Rules of Procedure provides that the Tribunal may, on its own initiative, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal.

Late Application

6The statutory deadline for filing an Application with the Tribunal and the circumstances under which a late Application will be accepted are set out in subsections 34(1) and (2) of the Code:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7Section 7(c) of the Application ("What was the date of the last event?") states that July 14, 2009 was the last alleged incident of discrimination, but this appears to be a typo as there is an admission that the Application was filed one month out of time, and a brief explanation as to why it was filed out of time. The Response, however, does not address this issue.

8In my view, it is therefore appropriate to request written submissions from the parties as to whether the Tribunal should dismiss the Application because it was not filed with the Tribunal within the one-year statutory deadline. The parties may wish to consider the Tribunal's jurisprudence on subsections 34(1) and (2) of the Code, including Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

Barred Application

9The circumstances in which an Application is barred are set out in subsection 34(11) of the Code, which provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

10Although the applicant filed a claim in small claims court that alleges that the respondent terminated his employment because of its reluctance to accommodate his needs related to his disability, and requests damages for the termination, neither party addressed in their pleadings whether the Application is barred by subsection 34(11) of the Code.

11In my view, it is therefore appropriate to request written submissions from the parties as to whether the Tribunal should dismiss the Application because the applicant commenced a civil proceeding in court in which he is seeking remedies for alleged discrimination. The parties may wish to consider the Tribunal's jurisprudence on subsection 34(11) of the Code, including Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.

DEFERRAL

12Section 45 of the Code provides that the Tribunal may defer an application in accordance with the Tribunal's Rules of Procedure. Rule 14.1 of the Tribunal's Rules provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

13In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

Deferral 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.

Some 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.

14The Response provided brief submissions as to why the Tribunal should defer the Application, but the applicant did not file a Reply or otherwise address this issue.

15In my view, it is therefore appropriate to request written submissions from the parties as to whether the Tribunal should defer consideration of the Application pending the outcome of proceedings before the Small Claims Court of the Superior Court of Justice.

ORDER

16The Tribunal therefore makes the following Order:

(a) The applicant is directed to deliver to the respondent and file with the Tribunal by January 7, 2010 written submissions, including documents and case law, if any, which address the above issues.

(b) The respondent is directed to deliver to the applicant and file with the Tribunal by January 21, 2010 written submissions, including documents and case law, if any, in reply.

17I am not seized of this matter.