Linda Hill v. Cotton Inc. and Renzo Giancaterino, 2010 HRTO 1645

Human Rights Tribunal of Ontario

B E T W E E N:

Linda Hill Applicant

-and-

Cotton Inc. and Renzo Giancaterino Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta Date: August 5, 2010 Citation: 2010 HRTO 1645 Indexed as: Hill v. Cotton

1This is an Application filed on April 2, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2The applicant alleges that she discrimination on the basis of family, marital status and disability, the last ground being articulated in the body of the Application although not checked off. She further alleges that she experienced discrimination and harassment on the basis of sex, was subjected to sexual solicitation or advances, reprisal or the threat of reprisal.

3The respondents deny that they have breached the Code. The corporate respondent seeks to have the Application dismissed on the basis that another proceeding has dealt with the substance of the Application or, in the alternative, to defer the Application as there is another proceeding that is ongoing and that deals with the issues and facts being advanced in this Application. The personal respondent also seeks to have the Application dismissed or deferred.

4For their arguments, both respondents rely on a decision by a Claims Adjudicator employed by the Workplace Safety and Insurance Board (“WSIB”) dated August 19, 2008. In that decision, the WSIB worker denies the applicant entitlement to WSIB benefits as he indicates he has been unable to “identify a specific traumatic event that happened while at work that meets the present WSIB policy”. It appears that the policy the WSIB worker is referring to relates to loss of earnings benefits for a psycho-traumatic disability. The applicant has appealed that decision by letter dated December 11, 2008.

5The respondents argue that there is a significant overlap in the factual underpinning of both proceedings.

6The applicant for her part opposes any deferral to the WSIB appeal process as well as dismissal on the ground that the WSIB decision has, in whole or in part, dealt with the substance of her Application.

7She argues that the decision of the WSIB worker was about entitlement to benefits under the WSIB and that it does not make a finding that she did not suffer sexual harassment or that she was not subjected to sexual advances or solicitation. She further argues that the WSIB proceeding does not address her allegations of discrimination on the basis of disability, family status and marital status, her allegations concerning reprisal or her contention that the respondent employer failed to investigate her complaint.

8Although the parties attempted mediation, no settlement was reached and a decision is now required to determine how the Application will proceed. This Interim Decision addresses the request to defer made by the respondents and opposed by the applicant.

9Deferral 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 parties are involved in other legal proceedings.

10Some 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.

11In these circumstances, there appears to be an overlap between the facts underlying the issues in dispute in both the WSIB appeal and the human rights Application. In particular, the WSIB appeal will address the question of whether certain events, also in dispute in the human rights Application, occurred in the workplace that would give rise to an application of their policy. Certainly the outcome of the WSIB process may well have an impact on the remedy ordered in the event a breach of the Code can be established.

12The Tribunal, therefore, finds it appropriate to defer consideration of this Application pending the conclusion of the appeal to the Appeals Resolution Officer (“ARO”) at the WSIB.

13The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the ARO appeal has been concluded.

14I am not seized.