Mullings v. Global Alliance Worldwide Chauffeured Services Ltd., 2010 HRTO 895

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glendon Mullings

Applicant

-and-

Global Alliance Worldwide Chauffeured Services Ltd., Joe Ironi and Angel Sarris

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: April 26, 2010

Citation: 2010 HRTO 895

Indexed as: Mullings v. Global Alliance Worldwide Chauffeured Services

APPEARANCES:

Gordon Mullings, Applicant ) Glen Morrison, Representative )

Global Alliance Worldwide Chauffeured )

Services Ltd., Joe Ironi and Angel )

Sarris, Respondents ) Robert Stewart, Representative

1This Interim Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). A hearing was scheduled on April 22, 2010. It was adjourned for the reasons that follow.

2This matter was originally scheduled for hearing on July 10, 2009. It was adjourned and re-scheduled for August 25, 2009. That date and a subsequent date were adjourned due to the respondents’ representative’s ongoing medical issues. The hearing was re-scheduled for April 22, 2010 and notice of the re-scheduled hearing of April 22, 2010 was sent on December 11, 2009. The Notice was sent to the applicant and his representative and to Mr. Stewart, the corporate respondent and the two personal respondents. As with the previous dates, the hearing date was scheduled on consent.

3On April 20, 2010, the Tribunal received an adjournment request from the respondents’ representative. He indicated that his clients had failed to note the hearing in their diaries, that they were both out of town and could not attend on April 22. The Registrar advised Mr. Stewart that a request for adjournment would have to be made in person at the scheduled hearing.

4On April 22, 2010, the applicant appeared with his representative. Mr. Stewart was present. The respondents were not. Mr. Stewart believed he would be able to reach his clients by telephone but he was not able to do so.

5At the commencement of the hearing, I noted that neither party had filed any documents subsequent to the original Application and Response, notwithstanding the fact that the matter had been scheduled for hearing on several occasions. The parties were not ready to proceed and the personal respondents were not present or available by telephone.

6The representatives advised that the parties have an ongoing related case under the Employment Standards Act, 2000, S.O. 2000, c.41 (“the ESA”). An Employment Standards Officer investigated a complaint made by the applicant and determined that the applicant was an employee and that he was owed severance pay under the Employment Standards Act. The respondents appealed that order to the Ontario Labour Relations Board (OLRB) and a hearing has been scheduled for May 21, 2010. The issues identified by the respondents in respect of the hearing before the OLRB include the findings of fact made by the Employment Standards Officer about the events leading up to the termination of the applicant’s employment/contract with the respondent.

7I asked the parties for submissions about whether further consideration of the Application by the Tribunal should be deferred until the process under the ESA had been completed. Mr. Stewart submitted that deferral was appropriate. Mr. Morrison submitted that the Application should not be deferred. He proposed that a new date for a hearing at the Tribunal be set. The parties would then continue settlement discussions and file their documents with the Tribunal in the event that a settlement is not reached. Mr. Morrison argued that the ESA process will not deal with the human rights issues. He did however agree that there is some factual overlap between the two proceedings.

8In 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.

9I determined that it is appropriate to defer further consideration of the Application until the completion of the ESA process. The reason for this is that a hearing is scheduled within a few weeks before the OLRB. That proceeding raises exactly the same factual issues relating to the events that led to the termination of the employment/contract. It will also deal with the applicant’s entitlement to severance pay which could be significant in respect of any damages the applicant might be entitled to in the event he was successful in establishing the allegations in the Application.

ORDER

10The Tribunal will defer further consideration of the Application until the ongoing process under the Employment Standards Act is concluded.

11The 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.

12I am seized of this Application.