Shamim Parves v. Thiaf Chowdhury, 2010 HRTO 1060

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shamim Parves Applicant

-and-

Thiaf Chowdhury Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: May 12, 2010 Citation: 2010 HRTO 1060 Indexed as: Parves v. Chowdhury

APPEARANCES BY

Shamim Parves, Applicant ) Muhammad Ibrahim, Representative Thiaf Chowdhury, Respondent ) On his own behalf

1This Interim Decision addresses the issue of whether the Application should be deferred pending the outcome of a complaint filed by the applicant under the Employment Standards Act, 2000, S.O. 2000, c.41 as amended (the "ESA").

2The applicant alleges that he was subjected to sexual harassment in employment when he worked for the respondent for one day in a restaurant. The applicant alleges, among other things, that he worked for 12.5 hours and that the respondent harassed him all day. In his Response, the respondent asserts that he told the applicant to come in the morning for an observation shift, found that the applicant did not have any experience and, after two hours, told him to go home. In his Reply, the applicant submits that the respondent did not send him home after two hours; rather, he dropped him off at a subway station at night after work.

3At the commencement of the hearing on May 10, 2010, the parties advised the Tribunal that the applicant had also filed a complaint under the ESA, and that an Employment Standards Officer ("ESO") issued a decision on May 5, 2010, in relation to the complaint. A copy of the decision was provided to the Tribunal and it appears from the decision that the ESO determined, based on the evidence of witnesses at a Decision Making Meeting, that the applicant worked for the respondent for 2.5 hours. The applicant, through his representative, indicated that it was his intention to appeal the decision of the ESO to the Ontario Labour Relations Board (the "OLRB").

4The Tribunal sought submissions from the parties about whether further consideration of the Application by the Tribunal should be deferred until the process under the ESA had been completed. The respondent agreed that the Tribunal should defer the Application. The applicant submitted that the Tribunal should not defer the Application as the Application deals with harassment, whereas the ESA complaint deals with monies owing.

5In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:

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. 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 types 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.

6In my view, it is appropriate to defer further consideration of the Application until the completion of the ESA process. While the focus of the legal issues in each proceeding is different, there is a significant overlap in the factual issues in both proceedings. In addition, an ESO has issued a decision determining a significant issue in dispute between the parties concerning the day the applicant worked for the respondent. The applicant has indicated that he intends to pursue an appeal of that decision to the OLRB.

7The Tribunal will defer further consideration of the Application until the ongoing process under the ESA is concluded. The Tribunal's Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.

8I am not seized of this matter.