Deslauriers v. Arden Holdings, 2010 HRTO 686

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: Michelle Flaherty

Date: March 29, 2010

Citation: 2010 HRTO 686

Indexed as: Deslauriers v. Arden Holdings

1This Interim Decision deals with the respondents’ Request to dismiss (or, in the alternative, 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 (the “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 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 (“Request”), asking the Tribunal to defer the Application pending the outcome of the ESA claim on the basis that the Employment Standards Officer (“ESA Officer”) would be determining the applicant’s allegations prior to any determination by this Tribunal. This Request was denied: see 2010 HRTO 4.

4In denying the Request to defer the Application, the Tribunal held:

Unlike 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.

5The respondents have filed a second Request, seeking the dismissal (or in the alternative, the deferral) of the Application. The ESA Officer has now rendered a decision, concluding that the applicant was dismissed for work-performance reasons and finding that the respondents did not violate the ESA. The respondents submit that these determinations are a complete answer to the proceeding before this Tribunal and that the Application should be dismissed as a result. Alternatively, and given that the applicant has sought a review of the ESA Officer’s decision, the respondents submit it would be appropriate to defer the Application in the circumstances.

6The applicant has filed a Response to the Request objecting to the dismissal or the deferral of the Application.

DECISION

7The respondents’ Request is denied.

8This Tribunal had earlier concluded that the ESA proceedings focus on only one element of the allegations of discrimination contained in the Application. The scope of ESA Officer’s findings are consistent with this. For the reasons set out in the Tribunal’s earlier Interim Decision, I find that the ESA Officer’s conclusions are not determinative of the Application.

9In any event, section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

10The ESA matter is ongoing and cannot be said to have “dealt with” the substance of the Application or part of the Application for the purposes of section 45.1 of the Code.

11Finally, in the earlier Interim Decision, this Tribunal held that it would not be appropriate to defer the Application pending the outcome of the ESA proceeding. In making that determination, the Tribunal specifically contemplated the possibility of an appeal of the ESA Officer’s decision. It wrote:

It 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.

12The respondents have not demonstrated any material change in circumstances arising out of the ESA Officer’s decision. Accordingly, there is no reason to interfere with the Tribunal’s earlier Interim Decision.

13The Request is denied.

14I note that the parties have filed additional Requests, seeking an order allowing amendments to the Application and an order for production. In my view, those issues are best dealt with at the hearing of this matter.

15I am not seized of this matter.