Martin Molla v. Leisure Days RV Centre, 2009 HRTO 716

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N

Martin Molla

Applicant

-and-

Leisure Days RV Centre, a division of Embrun Ford Sales Ltd., RV Canada Ltd., 6292003 Canada Inc., Pat Butler, Charlene Brunet and Dave Nelson

Respondents

INTERIM DECISION

Adjudicator: Brian Sheehan

Date: May 29, 2009

Citation: 2009 HRTO 716

Indexed As: Molla v. Leisure Days RV Centre

written submissions BY

Martin Molla, Applicant ) Melynda Layton, ) Counsel

Leisure Days RV Centre, a division of ) Dana P. Tierney, Embrun Ford Sales Ltd., RV Canada Ltd., ) Counsel 6292003 Canada Inc., Pat Butler, Charlene Brunet ) and Dave Nelson, Respondents )

1This is an Application filed August 20, 2008 under section 53(3) of Part IV of the Human Rights Code. The Complaint that underlies this Application was filed with the Ontario Human Rights Commission on February 5, 2008 and alleges discrimination because of disability in relation to employment. The facts associated with the Application relate to the applicant being laid-off from his position at Leisure Days RV Centre in the fall of 2007 and the consequent impact of that layoff.

2The Interim Decision deals with a request by the respondents that the Tribunal defer consideration of the Application, pending the conclusion of a wrongful dismissal action brought by the applicant against the corporate respondents.

3The Tribunal requested submissions of the parties with respect to the respondents’ deferral request.

4Upon reviewing those submissions the Tribunal wrote to the parties on April 21, 2009 advising that the request to defer was granted, with reasons to follow. These are my reasons.

Reasons for Granting the Deferral Request

5The relevant principles regarding a request to defer an Application were set out in Matechuk v. OLG at Thousand Islands 2009 HRTO 324 as follows:

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 (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.

6The wrongful dismissal action brought by the applicant does not formally assert a violation of the Human Rights Code. The fact scenario, however, outlined in the Statement of Claim in that proceeding is almost identical to the facts raised in this Application. In fact, in the submissions filed by the applicant it was accepted that the facts in the civil action and this Application are “related”.

7In arguing against the deferral request the applicant’s submission focused on the different types of remedies being sought in the respective proceedings. In particular, reliance was placed on the fact that in the wrongful dismissal action there is no right to “loss of income” damages and a civil court would not have the jurisdiction to order of the reinstatement of the applicant. With respect to the latter point, it is noteworthy that the applicant did not set out in the Application that he was seeking reinstatement. Additionally, while from a conceptual point of view damages in lieu of “reasonable notice” in a wrongful dismissal action may vary somewhat from the concept of damages being awarded for “loss of income” pursuant to this Application the underlying purpose of both damage awards is to compensate an employee for impact of the loss of employment. Moreover for both the civil court and for this Tribunal the relevant time period for which damages would be awarded would be a period from the date of the applicant’s termination onwards. Accordingly, any award for damages in lieu of “reasonable notice” under the wrongful dismissal action would potentiality overlap any claim for damages for “loss of income” under this Application.

8Another factor weighing in favour of granting the deferral request is that there has been a substantial amount of work already completed regarding the wrongful dismissal action. The filing of pleadings by the parties has been completed, affidavits of documents have been exchanged, the discovery of witnesses has commenced, and the parties were in the process of scheduling mediation.

9Given the similar fact scenario, the inherent potentiality of conflicting decisions on the facts, the possibility of an overlap in remedies, and the relatively advanced stage that the wrongful dismissal action has reached, it is appropriate to defer consideration of this Application pending the conclusion of that proceeding.

10If the applicant wishes to proceed with this Application following the conclusion of the civil action, the applicant is directed to contact the Registrar-Transition no later than 60 days after the conclusion of that proceeding.