Nicholson v. Herbal Magic Inc., 2010 HRTO 2440

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amy Nicholson Applicant

• and-

Herbal Magic Inc. Respondent

INTERIM decision

Adjudicator: Ena Chadha Date: December 8, 2010 Citation: 2010 HRTO 2440 Indexed as: Nicholson v. Herbal Magic Inc.

1The applicant filed this Application on September 28, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of sex (pregnancy) and family status.

2The applicant alleges that the respondent discriminated against her by terminating her employment when she sought to return to work after pregnancy leave. In her Application, the applicant noted that a claim pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) was proceeding regarding the facts in her Application. The applicant provided a copy of the ESA claim.

3On October 14, 2010, the Tribunal issued a Notice of Intent to Defer to the parties indicating that the Tribunal was considering deferring the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the parties to file submissions no later than 30 days from October 14, 2010 as to why consideration of the Application should or should not be deferred

4The respondent wrote to the Tribunal on November 12, 2010 and in this correspondence indicated that it had no objection to the deferral of the Application.

5The applicant did not file submissions in response to the Tribunal’s Notice and the timeline for doing so has elapsed.

DECISION

6The 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.

7Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

8The applicant’s ESA claim was filed on September 27, 2010 and deals with the applicant’s allegations that her dismissal was related to her pregnancy leave. A review of the applicant’s ESA claim reveals that the Application narrative and the ESA allegations are totally identical. It appears that the ESA process commenced first and the claim is on-going. Given that the legal issues in the Application and the ESA claim are identical and arise out of the same factual circumstances, and the possibility that there may be overlapping remedies, the Tribunal finds in these circumstances that it is appropriate to defer consideration of this Application pending the conclusion of the ESA proceeding.

9The Tribunal orders the deferral of the Application pending the conclusion of the ESA process. 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).

10I am not seized of this matter.