Deslauriers v. Arden Holdings, 2010 HRTO 4

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Renee Deslauriers

Applicant

-and-

Arden Holdings Inc., Ardenes and Amanda Carpino

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 4, 2010

Citation: 2010 HRTO 4

Indexed as: Deslauriers v. Arden Holdings

1This Interim Decision deals with the respondents’ request to defer this Application pending a determination of the applicant’s claim to the Ministry of Labour alleging a contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”).

2The applicant filed her Application on July 16, 2009, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of disability. The applicant filed a claim with the Ministry of Labour alleging a contravention of the ESA (the “ESA claim”) on March 9, 2009, alleging that her employment had been wrongfully terminated. The facts cited in the ESA claim, although more abbreviated, are similar to those in her Application.

3On November 25, 2009, the respondents filed a Request for Order During Proceedings, asking the Tribunal to defer the Application pending the outcome of the ESA claim on the basis that the Employment Standards Officer would be determining the applicant’s allegations prior to any determination of them by this Tribunal. The applicant filed a Response to the Request for Order on December 4, 2009 opposing the deferral request, and indicating that the ESA claim had not, as of that date, been decided.

DECISION AND ANALYSIS

4The Tribunal may defer consideration of an application on such terms as it may determine (Rule 14.1 of the Rules of Procedure). Deferral of an application ensures that legal processes dealing with the same issues do not run concurrently. It is not automatically invoked simply because the parties are involved in other legal processes, but is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case.

5Some 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 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.

6With respect to the subject matter of the respective proceedings, in her Application, the applicant alleges that the respondents terminated her employment rather than accommodate a neck and shoulder disability that she acquired days earlier. Specifically, she alleges that the respondents failed to provide light duties upon her return to work from a short, disability-related absence, and improperly relied upon that absence, as well as her inability to complete certain tasks (resulting from the injury), to terminate her employment.

7On the face of the ESA claim, the allegations are similar. However, there is no global protection from disability discrimination enshrined in the ESA. Rather, it enumerates certain specific protections. A letter from the Employment Standards Officer assigned to the applicant’s case indicates that the Ministry of Labour is treating this as a reprisal claim under the ESA. The relevant provisions of the ESA, which are cited in the letter, are as follows:

s.50(1) An employee whose employer regularly employs 50 or more employees is entitled to a leave of absence without pay because of any of the following:

1. A personal illness, injury or medical emergency. …

(5) An employee is entitled to take a total of 10 days’ leave under this section in a calendar year.

74. (1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a) because the employee,

(i) asks the employer to comply with this Act and the regulations,

8Unlike this Tribunal, it would appear that the Employment Standards Officer’s inquiry will be focussed on one of the three factual elements that the applicant alleges constitute discrimination – namely, whether the three days the applicant took off work to recuperate from her injury was improperly considered by the respondents in terminating her employment. Given that the Employment Standards Officer will not be addressing whether there was discrimination or not, it is not clear how significant the factual overlap will actually be.

9It would appear from the letter that the Employment Standards Officer is in a position to make a decision shortly. In contrast, the Tribunal has not yet set hearing dates in this matter. However, there is a possibility of an appeal of the Employment Standards Officer’s decision, and awaiting the conclusion of that appeal could significantly delay any proceeding before the Tribunal.

10In the circumstances, I am of the view that deferral of this Application to the ESA process is not appropriate.

11I am not seized of this matter.