HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Dewey

Applicant

-and-

Cash Store Financial Services Inc. and Belinda Gracr

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 30, 2010

Citation: 2010 HRTO 951

Indexed as: Dewey v. Cash Store Financial Services

INTRODUCTION

1The purpose of this Interim Decision is to decide (a) whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a civil proceeding, (b) to strike the ground of “record of offences” from the Application, and (c) to seek clarification from the applicant as to whether she intends to proceed against the individual respondent.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 3, 2009, which alleges that the respondents discriminated against her with respect to employment because of disability and record of offences.

3Specifically, the applicant alleges that the respondents terminated her employment because she took a one-month medical leave of absence. The narrative of the Application does not have any allegations relating to the ground of “record of offences”, and in section A36 and A37 of the Application, the applicant states that she does not believe that she was discriminated against because of a record of offences under a federal or provincial law. The Application seeks financial remedies for loss of income and emotional distress, and other specific remedies, including reinstatement of benefits and a letter of reference.

4The organization respondent filed a Response on October 21, 2009, which denies the allegation of discrimination. The respondent states that it terminated the applicant’s employment solely because of her poor work performance. The individual respondent has not filed a Response, and it does not appear that the organization respondent’s Response was filed on her behalf.

5The organization respondent also requested that the Tribunal defer the Application because the facts of the Application are part of a civil proceeding that is still in progress. The organization respondent did not agree to mediation.

6The applicant filed a Reply on January 26, 2010, which acknowledges that there is an ongoing civil proceeding. On April 2, 2010, the applicant filed a copy of her claim to Ontario Superior Court of Justice with the Tribunal. The claim, which is dated December 17, 2009, is for wrongful dismissal and raises most of the same facts as in her human rights Application, but, on its face, does not allege that the respondent discriminated against her and does not seek remedies for the alleged discrimination. The claim seeks Wallace damages, damages for mental distress, and punitive damages.

DEFERRAL

7Section 45 of the Code provides that the Tribunal may defer an application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

8In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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 type 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.

9In my view, deferral is not the most fair, just and expeditious way of proceeding with the Application. Although there are concurrent proceedings that raise similar facts, the applicant’s civil claim does not allege that the respondent discriminated against her and does not seek remedies for the alleged discrimination. Furthermore, the human rights proceeding started first and appears to be at a more advanced stage than the civil proceeding.

10The organization respondent’s request for deferral of the Application is therefore dismissed.

RECORD OF OFFENCES

11Record of offences is defined in section 10(1) of the Code as follows:

“record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment;

12Although the applicant checked off the box for “record of offences” in section 5 (“Grounds Claimed”) of her Application, neither the narrative of the Application nor her Reply have any allegations relating to the ground of “record of offences”. In addition, the applicant explicitly states in her Application that she does not believe that she was discriminated against because of a record of offences under a federal or provincial law.

13Accordingly, the Tribunal orders that the ground of “record of offences” be struck from the Application.

INDIVIDUAL RESPONDENT

14The Tribunal issued a Notice of Application and delivered the Application to the individual respondent by regular mail at the address provided by the applicant. The individual respondent has not filed a Response, or otherwise communicated with the Tribunal, and the Tribunal’s Notice has not been returned.

15On March 17, 2010, the applicant informed a Tribunal staff person by telephone that the address that she provided was the individual respondent’s place of employment, but that the individual respondent no longer works there and she does not know what her home address is.

16As mentioned above, it does not appear that the organization respondent’s Response was also filed on behalf of the individual respondent.

17In the circumstances, the Tribunal directs the applicant to inform the Tribunal whether or not she intends to pursue her Application against the individual respondent, and if so, to provide an up-to-date address for service on the individual respondent. The applicant may file a Request for an Order During Proceedings (Form 10) to request that the Tribunal order the organization respondent to produce the individual respondent’s last known mailing and e-mail addresses. If the applicant fails to follow the Tribunal’s direction, the Application against the individual respondent will be dismissed.

ORDER

18The Tribunal therefore makes the following Orders and Directions:

(a) The organization respondent’s request for deferral of the Application is dismissed.

(b) The ground of “record of offences” is struck from the Application.

(c) The applicant shall inform the Tribunal by no later than May 7, 2010 whether or not she intends to pursue her Application against the individual respondent, and if so, provide an up-to-date address for service on the individual respondent. Alternatively, the applicant may file a Request for Order During Proceedings (Form 10) by that date to request that the Tribunal order the organization respondent to produce the individual respondent’s last known postal and e-mail addresses.

19I am not seized of this matter.