Acosta v. Far Horizons Inc., 2010 HRTO 1332

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dulce Acosta

Applicant

-and-

Far Horizons Inc., Evan Frank and Mark Schwartz

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 11, 2010

Citation: 2010 HRTO 1332

Indexed as: Acosta v. Far Horizons

1The applicant filed an Application under s. 34 of the Code on July 28, 2009 alleging discrimination in employment on the basis of race, colour, place of origin, ethnic origin and sex. The applicant submitted that she was terminated from her employment on January 8, 2009. She provided a chronicle of events from her employment in which she alleges that discrimination towards herself and others took place.

2The respondents filed a Response on October 7, 2009, which requested an early dismissal of the Application on the basis that a claim based on the same facts has been filed in civil court and because another proceeding has in whole or in part appropriately dealt with the substance of the Application. The respondents attached a Statement of Claim for wrongful dismissal that the applicant filed with the Small Claims Court of the Superior Court of Justice on May 1, 2009 (the “Claim”) against the corporate respondent. The respondents indicated that a Statement of Defence has been filed, that the Claim has proceeded through the settlement conference stage and the applicant has to set the matter down for trial.

3In an earlier Interim Decision, 2010 HRTO 411, the Tribunal dismissed the respondents’ request for an early dismissal of the Application under sections 34(11) and 45.1 and noted that section 45.1 of the Code did not yet apply because the civil litigation had not been concluded. The Tribunal sought submissions from the parties on whether the Application should be deferred pending the completion of the civil litigation. Initially the Tribunal was advised that the civil litigation was dismissed for delay, but the claim was revoked and the matter set down for trial. The Tribunal requested a status of the civil litigation and the parties advised that the trial commenced in April with another day scheduled for May, which was adjourned. As of June 2, 2010, the respondent’s counsel has advised the Tribunal that the parties are still waiting for another trial date to be set.

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

5The Tribunal has deferred an application where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution. See Klein v. Toronto Zionist Council, 2008 HRTO 189. Even if the human rights issues will not be resolved by the civil action, if it is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding. See Tekes v. Markham (Town), 2009 HRTO 1665.

6In this case, the civil litigation has had one day of trial with another to be scheduled by the court. Accordingly, even if the human rights issues will not be resolved by the civil action, given the advanced stage of the civil proceedings, the Tribunal decides it is appropriate to defer the Application pending the completion of the civil proceeding.

7The Tribunal directs the parties’ attention to Rule 14.3 and 14.4 which outline the process by which the Application may be brought back on after the civil proceeding has been concluded.

8I am not seized of this matter.