Vonella v. Blake Jarrett and Company, 2010 HRTO 1206

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elena Vonella

Applicant

-and-

Blake Jarrett and Company, Devin Melanson, Blake Jerret and Kelly Green

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: May 28, 2010

Citation: 2010 HRTO 1206

Indexed as: Vonella v. Blake Jarrett and Company

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination in the context of employment on the basis of sex. In essence, she alleges that her pregnancy and parental leaves were factors in the termination of her employment.

2The respondents deny the allegations of discrimination and seek the deferral of the Application because of an ongoing matter under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). The respondents have also filed Requests for an Order During Proceedings (“Requests”) seeking the removal of Devin Melanson, Blake Jerret and Kelly Green as individual respondents.

3The applicant filed a Reply in which she addresses in detail the factual allegations made in the Response. The Reply does not, however, address the deferral issue or the requested removal of the individual respondents. The applicant has not filed a Response to the Requests and the time for doing so has elapsed.

4Pursuant to Rule 14 of its Rules of Procedure, the Tribunal may defer consideration of an application.

5Deferral 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.

6Some 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 the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

7In this case, there is considerable overlap in the subject matter of the Application and the ESA claim. Both arise out of the termination of the applicant’s employment and allege that her pregnancy and parental leave were factors in her dismissal. In my view, if the ESA claim and the Application proceed at the same time, the parties will be required to concurrently address substantially the same issues in two different forums.

8As the Tribunal explained in Chan v. Drake International, 2009 HRTO 1067, the remedies that are available under the ESA and the Code are quite similar in the circumstances of this case. Pursuant to section 104(1) of the ESA, if an Employment Standards Officer finds that an employer has contravened the pregnancy leave provisions of the ESA, the Officer may order that the employee be compensated for loss, be reinstated, or be both compensated and reinstated.

9In light of these considerations, I am satisfied that the Application should be deferred until the ESA claim has been determined. The parties may wish to refer to Rules 14.3 and 14.4, which outline how the Application may proceed once the other matter has concluded.

10The respondents’ remaining Requests will be addressed if the Application proceeds following the outcome of the ESA claim.

11I am not seized of this matter.