John Dykstra v. RLM Manufacturing Inc., 2010 HRTO 1871

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Dykstra

Applicant

-and-

RLM Manufacturing Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: September 13, 2010

Citation: 2010 HRTO 1871

Indexed as: Dykstra v. RLM Manufacturing

1The purpose of this Interim Decision is to decide whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a proceeding before the Ontario Labour Relations Board (the “OLRB”).

2The applicant was an employee of the respondent company. He filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 31, 2010 alleging that the respondent discriminated against him in employment on the basis of disability, family status and marital status.

3Specifically, the applicant alleges that he was subject to a lay-off and dramatically reduced hours of work after he advised the company that he was not available for overtime work due to a conflict between that and an appointment he had for counseling. His hours of work in the months that followed were so reduced that he was unable to support his family and was forced to secure alternate work, which he did in October 2009.

4Prior to filing this Application, the applicant filed a claim under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”) based on the same factual allegations as set out in his Application. The Employment Standards Officer issued a decision in which he found the claimant (applicant) entitled to an award of $74,113.28. The respondent appealed this decision to the OLRB. The proceeding before the OLRB is ongoing.

5In its Response to this Application, the respondent asked that the Application be dismissed pursuant to s. 45.1 of the Code or, in the alternative, deferred pending the outcome of the proceeding before the OLRB. Given that the OLRB process is ongoing, it would not be appropriate to dismiss this Application on this basis. Section 45.1 requires the other proceeding to have “dealt with” the substance of the Application.

6Rule 14.1 of the Tribunal’s Rules of Procedure states that 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

8The applicant opposes deferral, stating that the proceeding now before the OLRB concerns a breach of s. 74 of the ESA (reprisal for asserting a right under that legislation) and not a breach of the Code. Although the claim under the ESA does not allege discrimination, it is clear that it is based on the same factual allegations as the Application. Thus there is a potential for duplication of evidence if the two proceedings were to run concurrently and the possibility of inconsistent findings of fact.

9In addition, it would appear from the Employment Standards Officer decision that there is significant overlap between the remedy awarded in that matter and requested in this Application. In light of the significant overlap in issues, deferral is the most fair, just and expeditious way of proceeding with the Application.

10Accordingly, the Tribunal orders the deferral of this Application pending the conclusion of the ESA proceedings.

11Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

12I am not seized of this matter.