Mark Lewkowicz v. PlusOne Inc. and Joseph Brandt, 2010 HRTO 2122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Lewkowicz

Applicant

-and-

PlusOne Inc. and Joseph Brandt

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: October 22, 2010 Citation: 2010 HRTO 2122 Indexed as: Lewkowicz v. PlusOne

1This Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) was filed on August 23, 2010 and alleges discrimination in employment on the grounds of disability and age.

2In the Response to the Application filed October 6, 2010 the respondents ask the Tribunal to dismiss the Application pursuant to s.45.1 of the Code on the basis that another proceeding before the Ontario Labour Relations Board (OLRB) has appropriately dealt with the substance of the Application. In the alternative, the respondents ask that the Tribunal defer consideration of the Application pursuant to section 45 of the Code on the basis the OLRB proceeding raises some or all of the facts and issues raised in this Application.

3The applicant has responded to the requests in his Reply. He submits that the some of the issues in the OLRB proceeding are not addressed in this Application and that remedies available from the OLRB differ from those available from this Tribunal. The applicant goes on, however, to advise that he will be overseas from October 19, 2010 until April 2011 and wishes a postponement of his Application until his return.

4The purpose of this Interim Decision is to decide whether it is appropriate for the Tribunal to dismiss or defer consideration of this Application.

Request to Dismiss

5The OLRB proceeding was commenced two days after the applicant filed his Application with the Tribunal. A case conference was held on October 1, 2010. The parties were unable to resolve the application and therefore it will be scheduled for hearing. It is clear the OLRB proceeding has not been completed.

6Section 45.1 of the Code gives the Tribunal the discretion to dismiss an application that has been appropriately dealt with in another legal proceeding:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application

7Given the OLRB proceeding has not concluded the Tribunal cannot find that proceeding “has appropriately dealt with” the substance of the Application. The request to dismiss the Application is therefore denied.

Request to Defer

8A review of the Application and the materials filed with the OLRB confirms that the some, albeit not all, the facts and issues are shared. This raises the potential for duplication of evidence in the two proceedings and the possibility of inconsistent findings of fact and law

9Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides 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.

10In Baghdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

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.

11While the applicant filed his Application with Tribunal two days before making his OLRB application it was not initially accepted as complete and only delivered to the respondents by letter dated September 10, 2010. The pleadings period only closed with the delivery and filing of the applicant’s reply on October 14, 2010. It appears the OLRB proceeding has moved forward more quickly. A case conference has already been held and scheduling of a hearing is pending.

12In these circumstances, deferral is the most fair, just and expeditious way of proceeding with the Application. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the proceeding before the OLRB.

13Where 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).

14I am not seized of this matter.