Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alicja Golon

Applicant

-and-

Addison Chevrolet Buick GMC Limited

Respondent

INTERIM decision

Adjudicator: Brian Cook

Date: February 26, 2010

Citation: 2010 HRTO 448

Indexed as: Golon v. Addison Chevrolet Buick GMC ______________________________________________________________________

1This Interim Decision addresses the issue of whether the Application should be deferred pending the outcome of a claim filed by the applicant under the Employment Standards Act, 2000, S.O. 2000, c.41 as amended (the "ESA claim").

2The Application alleges discrimination in employment on the grounds of sex and pregnancy. In its Response, the respondent asked that the Application be deferred until the ESA claim had been disposed of. The ESA claim alleges that the applicant's employment was terminated because she was pregnant, which is the same allegation that is set out in the Application.

3The applicant filed a Reply to the Response, but did not address the deferral issue. In her Application, she advised that she had made an ESA claim, but asked that the Tribunal not defer consideration of her Application.

4The respondent submits that the Application should be deferred to ensure that there are not two concurrent proceedings dealing with the same issues.

Deferral considerations

5The Tribunal has consistently found that the fact that an applicant has started a different process arising out of the same circumstances that gave rise to the Application is not in and of itself a reason to defer dealing with an Application.

6In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:

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. 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 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.

7The extent to which the Employment Standards Officer may have the authority to deal with the alleged human rights issues is not clear. The ESA does not expressly incorporate the Code or give decision makers authority to resolve human rights issues. However, the Supreme Court of Canada has found that statutory tribunals that are empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the Code to a matter properly in front of them (Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14). It is not clear if this applies to a decision of an Employment Standards Officer although it would clearly apply to the Ontario Labour Relations Board (OLRB) which hears appeals under the ESA from decisions of an Employment Standards Officer.

8In Lutgens v. Oxford University Press, 2009 HRTO 797, and Matechuck v. OLG at Thousand Islands, 2009 HRTO 324, the Tribunal deferred applications because of an ESA proceeding alleging a contravention of the ESA on the grounds of pregnancy. In both of those cases, the Employment Standards Officer had made findings that were under appeal to the OLRB. The fact that the ESA proceeding was well under way with a pending appeal appears to have been a factor in those cases.

9A reason not to defer an application is that deferral will likely postpone the hearing of the application by the Tribunal. In general, it is preferable to adjudicate cases close in time to the events in question and applicants and respondents are entitled to expect the Tribunal to deal with applications in a timely fashion. The delay in adjudicating the application may be longer if the other proceeding is in the early stages.

10In this case, the ESA claim has been assigned to an Employment Atandards Officer. In a letter to the applicant dated November 16, 2009, the Employment Standards Program indicated that most claims are referred for investigation within six months.

11If a person has commenced another proceeding that raises the same human rights issues, it may be appropriate for the Tribunal to defer the application until the other proceeding is complete, even if the other proceeding is still in the early stages.

12First, it may not be fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Secondly, there is a potential for inconsistent findings in the two proceedings. Inconsistent findings by two different adjudicative bodies may occur because the cases are presented differently or because different statutes or rules may apply. However, it is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues.

13In this case, the circumstances giving rise to the Application and the ESA claim are the same. If the ESA claim and the Application proceed at the same time, the parties will be required to concurrently address substantially the same issues in two different forums. There is a potential for inconsistent findings.

14The remedies that are available to a person under the ESA and the Code are potentially quite similar, depending on the nature of the allegation. Pursuant to section 104(1) of the ESA, if an Employment Standards Officer finds that an employer has contravened the pregnancy leave provisions of the ESA, the Officer may order that the employee be compensated for loss or that she be reinstated, or both compensated and reinstated. Compensation can include compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering. While not identical, the remedies potentially available under the ESA in pregnancy cases are thus similar to the remedies that are available under the Code and the remedies that are available, while not identical, are similar.

15In light of these considerations, I am satisfied that the Application should be deferred until the ESA proceeding has been concluded or abandoned. The Tribunal's Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.

16I am not seized of this matter.