Human Rights Tribunal of Ontario

B E T W E E N:

Robert Fountain Applicant

-and-

Trinity Communication Services Ltd. Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: November 18, 2010 Citation: 2010 HRTO 2300 Indexed as: Fountain v. Trinity Communication Services

[1] The Application was filed on September 2, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination on the basis of disability in respect of employment ("the Application").

[2] In his Application, the applicant indicates that he filed a complaint with the Canadian Human Rights Commission ("CHRC") based on the same facts and issues as those underlying the Application. He submits that there is some confusion about whether his human rights claim against the respondent employer falls within federal or provincial jurisdiction. He submits that he has therefore filed a claim under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 ("CHRA"), as well as under the Code in order to protect his rights and to meet the applicable statutory limitation periods in both jurisdictions.

[3] The respondent requests that the Tribunal defer consideration of the Application under the Code, pending a determination under the CHRA with respect to whether the applicant's human rights claim falls within federal or provincial jurisdiction. The respondent submits that the CHRC has requested submissions from the parties with respect to the jurisdictional issue, but has not yet decided it.

[4] The applicant does not take a position with respect to whether or not the Tribunal ought to defer consideration of his Application.

[5] 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 (Rule 14.1). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, the Tribunal must also 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.

[6] If the Tribunal were not to defer consideration of the Application, then the first issue it would have to determine would be whether the applicant's human rights claim falls within provincial jurisdiction, in which case it is properly within the Tribunal's jurisdiction, or federal jurisdiction, in which case it is not. This is precisely the issue which is currently being determined by the CHRC. Thus, proceeding with the Application could very possibly lead to inconsistent decisions on the jurisdictional issue. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application is appropriate.

[7] The parties' attention is drawn to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure which address how the Application may be brought back on before the Tribunal, following determination by the CHRC with respect to whether the applicant's human rights claim falls within federal or provincial jurisdiction. The Rules of Procedure are available on the Tribunal's website, www.hrto.ca under "New Applications".

[8] I am not seized of this matter.

Dated at Toronto, this 18^th^ day of November, 2010.

"Signed by"

Sheri D. Price Vice-chair