Matechuk v. OLG at Thousand Islands, 2009 HRTO 324

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Matechuk

Applicant

-and-

OLG at Thousand Islands

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: March 19, 2009

Citation: 2009 HRTO 324

Indexed as: Matechuk v. OLG at Thousand Islands

INTRODUCTION

1The applicant filed an Application with the Tribunal pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of sex (pregnancy). The purpose of this Interim Decision is to determine whether or not it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of proceedings under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”).

2In her Application filed on January 19, 2009, the applicant noted that another proceeding was in progress and on that basis made a Request to Defer pursuant to section 45(1) of the Code pending the conclusion of proceedings under the ESA. On February 17, 2009, the Tribunal sent a notice of a Request to Defer to the respondent along with a copy of the Application. The respondent’s submissions with respect to the Request to Defer were due on March 3, 2009; however, no submissions were received.

BACKGROUND

3The applicant filed a claim under the ESA against the respondent in respect of the events giving rise to this Application, namely the termination of her employment upon return from pregnancy leave. An investigation was conducted by an employment standards officer who concluded that the respondent violated the pregnancy leave provisions of the ESA. An Order to Pay Wages/Compensation in favour of the applicant was issued on January 13, 2009. The award included compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering.

DECISION

4The 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 (Rule 14.1). 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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: see Calabria v. DTZ Barnicke, 2008 HRTO 411 and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

5Although no documentation was provided confirming the status of the ESA Order, information contained in the Application suggests that both the applicant and the respondent may each have commenced a review of the employment standards officer’s decision before the Ontario Labour Relations Board. The Application indicates that, in order to rectify a calculation error in the ESA Order, the applicant would need to file a review. The Application further indicates that the applicant was advised by a representative of the respondent that it would be seeking to review the ESA Order. Based on information in the Application, it appears the respondent had thirty days from January 13, 2009 to do this.

6Given the possible appeal in process, and that the issues in the current Application and the ESA proceeding are similar and arise out of the same factual circumstances, as well as the potential for overlapping remedies, the Tribunal finds in these circumstances that it is appropriate to defer consideration of this Application pending the conclusion of the ESA proceeding.

7If the applicant intends to proceed with this Application following the conclusion of the ESA proceeding, the applicant is directed to contact the Registrar 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.

8I am not seized of this matter.