Angelina Hambrook v. DDB Canada (a division of Omnicom Canada Inc.), 2010 HRTO 950

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angelina Hambrook

Applicant

-and-

DDB Canada (a division of Omnicom Canada Inc.)

Respondent

INTERIM decision

Adjudicator: Eric Whist

Date: April 30, 2010

Citation: 2010 HRTO 950

Indexed as: Hambrook v. DDB Canada

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on December 17, 2009. The Application alleges discrimination in employment on the grounds of sex and family status. The applicant was terminated from her employment while she was on maternity/parental leave. This Interim Decision addresses the respondent’s request that the Application 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 (“ESA”) which is currently under appeal to the Ontario Labour Relations Board (the “OLRB”).

2It appears that the applicant initiated her ESA claim on or about June 15, 2009. In a decision issued on October 30, 2009 an Employment Standards Officer concluded that there had been no breach of the ESA and dismissed the complaint. On December 2, 2009 the applicant filed an application for review of the Employment Standard’s Officer’s decision to the OLRB. The respondent submits the application for review and the Application before the Tribunal are premised on the same allegations of fact and that the remedies that are being requested in the two applications are virtually identical. The respondent submits to avoid the unnecessary duplication of proceedings the Application before the Tribunal should be deferred. The applicant has not filed a Reply and I have no submissions from the applicant in response to the respondent’s request for deferral.

3Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14.1 of the Tribunal’s Rules of Procedure, the 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. In each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application

4The statements identifying the alleged facts, issues and proposed remedies that the applicant has submitted with her applications to the Tribunal and to the OLRB are essentially identical. Both statements contend that the applicant’s employment was terminated while on her maternity/parental leave despite her job position still existing and that, in the alternative, there were comparable positions that the respondent should have offered the applicant but did not. Both applications propose almost identical remedies including reinstatement and similar financial damages.

5I am satisfied that it is appropriate to defer consideration of the Application pending the outcome of the applicant’s proceedings before the OLRB. The circumstances giving rise to the Application and the ESA claim and subsequent appeal to the OLRB are the same. In my view it would 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 notwithstanding that the applicant has filed claims under different statutory schemes. A deferral avoids the further issue that concurrent proceedings could lead to inconsistent findings of fact or law. I further note that the applicant initiated her ESA claim well prior to her Application to the Tribunal.

6The Tribunal regularly defers applications in cases in which the decision of an Employment Standards Officer has been appealed to the OLRB. See Lutgens v. Oxford University Press, 2009 HRTO 790, Matechuck v. OLG at Thousand Islands, 2009 HRTO 324 and Paramanthan v. Best Buy Canada, 2009 HRTO 1531.

7The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which set out the procedure if a party wishes to proceed with an Application pending the conclusion of another proceeding.

8I am not seized of this matter.