Hawley v. PricewaterhouseCoopers, 2010 HRTO 1886

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jessy Hawley

Applicant

-and-

PricewaterhouseCoopers LLP, Bruce Webster, Mary Arrand and Chirag Shah

Respondents

AND B E T W E E N:

Gary Phelps

-and-

PricewaterhouseCoopers LLP, Bruce Webster, Mary Arrand and Chirag Shah

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: September 16, 2010

Citation: 2010 HRTO 1886

Indexed as: Hawley v. PricewaterhouseCoopers

1These are two Applications filed on April 26, 2010 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicants are married former employees of the organization respondent, PriceWaterhouseCoopers LLP (“PWC”) who allege the respondents discriminated against and harassed them on various prohibited grounds, forcing them to resign their employment in a rush on April 29, 2009. The alleged discrimination and harassment relate to Ms. Hawley’s pregnancy and requests for accommodation her pregnancy and needs after childbirth.

2The organization respondent is the plaintiff in a court action against Ms. Hawley, Mr. Phelps, and others, in which the Statement of Claim was issued on October 2, 2009. The Statement of Claim alleges principally that the applicants, in conspiracy with the accounting firm where they went to work immediately after their resignation, used and obtained confidential information from PWC in violation of their legal obligations and took steps to conceal these breaches from PWC.

3The respondents ask that the Application be dismissed pursuant to s. 45.1 of the Code on the basis that the Court action has appropriately dealt with the substance of the Application. There is no merit to this argument, as there have been no determinations of any substantive issues in the Court action. It has certainly not dealt with any human rights issues. The request for dismissal pursuant to s. 45.1 is denied.

4In the alternative, the respondents request that the Application be deferred. Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions. The respondents made submissions on this issue in their Response and the applicants were directed to address this issue in their Reply, which they did.

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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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 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.

7In this case, I find that deferral pending the conclusion of the court proceedings is appropriate. I appreciate that, as the applicants argue, the Tribunal Application focuses on the events prior to the applicants making their decision to leave in April of 2009, while the action focuses on whether the applicants took confidential materials when they resigned and obtained such information in preparation for their resignation. However, the applicants’ motivations for their resignations, and the events leading up to them, are central to their arguments on the merits of the Applications and the question of whether they are timely. The issues of what each party did in March and April of 2009 and the parties’ credibility in relation to those events will be central to the resolution of the Application. In my view, the findings about each party did in March and April of 2009 in the action may bear significantly on the resolution of the issues in the Application. Although the legal issues are different, there is an important factual overlap.

8The action, which was filed before the Tribunal Application is at the pleadings stage, but there have been significant steps taken, including the making of an Anton Piller Order, which was subsequently terminated and is subject to appellate review. The parties have therefore engaged in significant steps in the action, although discoveries have not yet been held.

9In all the circumstances, including the overlap of facts, the complexity of the court litigation and the significant steps taken in that proceeding, I believe it would be most fair to the parties and in the interests of justice for the human rights Application to be deferred pending the completion of the court proceedings. In light of this finding, the Tribunal need not consider at this time the various grounds for dismissal put forward by the respondents, which can be raised if the Application is reactivated.

10The 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 civil claim has been concluded.