Loudres Vedia v. Broadridge Investor Communication, 2010 HRTO 198

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Loudres Vedia

Applicant

-and-

Broadridge Investor Communication, Jeri Trotter, Tony Presutti, and Amrita Williams

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 28, 2010

Citation: 2010 HRTO 198

Indexed as: Vedia v. Broadridge Investor Communication

WRITTEN SUBMISSIONS BY

Broadridge Investor Communication, ) Rachel Turnpenney, Counsel Jeri Trotter, Tony Presuti and Amrita ) Williams )

1This Interim Decision addresses whether the Application is barred or should be deferred as the applicant is plaintiff in an ongoing civil proceeding.

2The complaint filed with the Ontario Human Rights Commission on September 27, 2005 and abandoned upon filing the present Application, alleges that the respondents discriminated on the basis of ancestry, colour, race, ethnic origin and place of origin with respect to his employment, including the termination of her employment.

3In August 2006 the applicant filed a civil action against the respondents seeking damages for wrongful dismissal. There are no allegations in the civil action relating to any Code-protected grounds.

STATUTORY PROVISIONS

4Section 34 (11) of the Code provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

5Section 46.1 reads as follows:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

ANALYSIS

6The applicant’s civil action was stayed in April 2009 on the basis of the applicant’s intention to pursue the human rights Application instead. The applicant did pursue the Application by filing a transition application on June 30, 2009. The applicant has not filed a response to the respondents’ Request for a bar or a deferral.

7While there is some factual similarity between the civil action and the human rights Application, the civil action makes no reference to any facts which could give rise to claim for a remedy under the Code. In these circumstances, I find that the Application is not barred by s. 34(11) of the Code.

8I will now consider whether the Application should be deferred until the pending the outcome of the civil action.

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.

11At the moment, the civil action is stayed and the applicant has taken no steps to lift the stay. Therefore, the potential for duplication of proceedings at this time is remote. In the circumstances of this case, I find that deferral is not appropriate.

12The Transition-Registrar will contact the parties with a date for mediation.