Nicole Thompson v. Keiper Limited, 2011 HRTO 11

Human Rights Tribunal of Ontario

B E T W E E N:

Nicole Thompson Applicant

-and-

Keiper Limited Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: January 4, 2011 Citation: 2011 HRTO 11 Indexed as: Thompson v. Keiper

1The applicant filed an Application with the Tribunal on September 22, 2010 pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of disability.

2The respondent filed a Response on November 2, 2010. The respondent requests the Tribunal to defer consideration of this Application pending the conclusion of proceedings under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

3The respondent submits that the applicant filed an ESA claim seeking the same remedies requested in the Application. The respondent submits that ESA proceeding is ongoing. The respondent included copies of various correspondence from the Employment Standards Officer, including an ESA decision dated October 19, 2010.

4On November 25, 2010, the Tribunal delivered the Response and notified the applicant that the respondent was seeking to the defer the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant to file a Reply and submissions in response to the request to defer no later than December 9, 2010.

5The applicant did not file a Reply nor response submissions and the timeline for doing so has elapsed.

6The 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 (Rule 14.1). 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.

7Some 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, see Calabria v. DTZ Barnicke, 2008 HRTO 411 and Matechuk v. OLG at Thousand Islands, 2009 HRTO 324.

8While the respondent indicates that the ESA process is on-going, the respondent has not provided any information of the current status of that proceeding. Based on the information and correspondence provided by the respondent, it appears that an ESA decision was rendered prior to the respondent filing its Response. The ESA decision indicates that the respondent was ordered to pay termination and severance compensation to the applicant.

9No information has been provided that indicates the ESA proceeding remains ongoing. As such, deferral is not appropriate in the circumstances.

10Given that both parties have confirmed a willingness to participate in mediation, the Registrar’s Office will contact the parties in order to schedule a mediation in this matter.

11I am not seized of this matter.