HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nina Kuperman

Applicant

-and-

Jonan Pharmacy Ltd. o/a Shoppers Drug Mart

and Mario Rodrigues

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 1, 2010

Citation: 2010 HRTO 2390

Indexed as: Kuperman v. Jonan Pharmacy

INTRODUCTION

1This Application was filed on July 28, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of place of origin, citizenship and ethnic origin. The applicant alleges that beginning in 2009, Mario Rodrigues, the personal respondent, who was a manager for the corporate respondent, treated her inappropriately, including making comments about the applicant not understanding English and referring to her as having a “Russian attitude”. It appears that the applicant also has concerns about how she was treated by her immediate supervisor and a subsequent interim supervisor although it is not clear how their conduct allegedly violates the Code.

2As part of its Response, the respondents request that the Tribunal defer its consideration of the Application on the basis that the applicant has also filed an Employment Standards Claim with the Ministry of Labour. The applicant did provide along with her Application a copy of an Employment Standards Claim she has made which indicates that she is making a claim for severance pay and termination pay from the corporate respondent under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“Employment Standards Act”). I note that the Employment Standards Claim submitted by the applicant refers to an “attached letter” for details. This letter is not before the Tribunal.

3On October 22, 2010, the Tribunal wrote to the applicant to indicate that it had received a Request to Defer from the respondents and that the applicant must file a Reply to the Response by November 5, 2010, including compete submissions in response to the Request to Defer. The Tribunal’s letter goes on to indicate that after receiving the applicant’s submissions the Tribunal would decide how to proceed with the issues raised by the respondents.

4On November 5, 2010, the applicant wrote to the Tribunal to ask for an extension of time until November 12, 2010, to file her Reply. The Tribunal granted this request. On November 10, 2010, the applicant filed her submissions. The submissions read as follows:

The matter before the Labor [sp] Board is statutory termination and severance pay only. The issue is discrimination me on the basis of origin namely Mr. Rodrigues made an ethnic slur toward me. In addition at the time of this incidents [sp] I had been sick with a stress issue for which I am being medicly [sp] treated. The respondents knew of this and they failed to accommodate me.”

DECISION

5The 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 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.

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 nature and status of each proceeding and the steps that have been taken to pursue them.

7I am of the view that a deferral is appropriate in this case. While it is true that the applicant’s Employment Standards Claim is in relation to statutory entitlements for termination pay and severance pay, it is not clear that this is a discrete issue unrelated to issues raised by the applicant in her Application and her subsequent submissions. I note that there appears to be a disagreement between the parties as to whether the applicant’s employment was terminated or whether the applicant resigned. It may well be that a determination as to whether the applicant is entitled to severance pay and termination pay will require an examination of the circumstances related to the applicant’s employment, including the events leading up to the end of her employment and how she was treated by the respondents. In my view there is a possibility that such an examination could address issues raised by the applicant in her Application.

8I also note that the applicant appears to be raising in her submissions a further issue of discrimination; namely, whether she had a disability that the respondents failed to accommodate. This is not raised in her Application. However, it does appear to be an issue the applicant submits is related to why her employment with the corporate respondent came to an end. As such, this issue of alleged discrimination might be considered by the Employment Standards Claim process. I am of the view that resolving the Employment Standards Claim first will help avoid the possibility of two legal processes proceeding at the same time which could lead to inconsistent decisions on fact and law.

9The Application will therefore be deferred pending the completion of the claim filed under the Employment Standards Act. Where 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). If the applicant decides to make such a Request for an Order During Proceedings she may, if she wishes, also make a further Request for an Order During Proceedings to add disability as a ground of discrimination in her Application. The respondents will, of course, have the opportunity to make submissions in response to any Request for an Order During Proceedings that the applicant may choose to make.

10I am not seized of this matter.