Grant v. Sturteco Canada, 2011 HRTO 1111

Human Rights Tribunal of Ontario

Between:

George Grant Applicant

-and-

Sturteco Canada Ltd. Respondent

Interim Decision

Adjudicator: Ena Chadha Date: June 08, 2011 Citation: 2011 HRTO 1111 Indexed as: Grant v. Sturteco Canada

1The applicant filed an Application with the Tribunal on February 14, 2011 pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant alleges that he was subjected to discrimination and harassment in employment on the basis of disability and that he was dismissed because of disability. In his Application, the applicant indicates that facts of the Application are part of an unfair labour practice complaint before the Ontario Labour Relations Board ("OLRB"). In that complaint, the applicant's union alleges, on the applicant's behalf, that the applicant was subjected to discrimination and harassment by the employer because the applicant was a union supporter. The applicant appended a copy of the OLRB complaint dated November 22, 2010 along with his Application.

3The respondent filed a Response on April 8, 2011. The Response indicates that the respondent first became aware of the disability-related discrimination allegations described in the Application upon receipt of the OLRB complaint. The respondent did not specify whether or not it was seeking that the Tribunal defer consideration of this Application pending the conclusion of the OLRB proceeding.

4On May 13, 2011, the Tribunal delivered a copy of the Response to the applicant and issued a Notice of Intent to Defer ("Notice") 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 directed the applicant to file a Reply setting out the applicant's submissions with respect to the issue of deferral.

5The applicant filed submissions in response to the Tribunal's Notice on May 27, 2011. The applicant argues that the Application should not be deferred because the issue raised in the OLRB complaint is different from the human rights Application and that the applicant is not a direct party to the OLRB complaint. The applicant also argues that there is no indication that the OLRB matter will proceed sooner than the Tribunal process and that neither party seeks for the Application to be deferred.

Decision

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.

7While deferral is not automatic, it is granted to avoid adjudicative duplication. 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: Calabria v. DTZ Barnicke, 2008 HRTO 411 and Matechuk v. OLG at Thousand Islands, 2009 HRTO 324. A deferral under section 45 of the Code does not require that all of the issues in the Application be disposed of at the conclusion of the other proceeding: Bradshaw v. Complex Services, 2010 HRTO 1215.

8Based on a review of the Application and the OLRB complaint, I note that both allege that the applicant experienced discrimination and harassment in relation to the applicant's disability and termination of employment. The Application narrative and OLRB complaint are virtually identical and both seek similar remedies. It appears that the OLRB process was commenced first and that the claim is on-going.

9While the applicant opposes deferral, the applicant acknowledges that there is substantial factual overlap between the two matters. The applicant does not deny that the allegations and remedial claim in the Application and the OLRB complaint are the same. Although the applicant indicates that the legal issues are distinct, I find that there is a possibility that the legal issues may intersect with respect to the issue of termination.

10I note that Tribunal jurisprudence has held that it is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues: Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448. Furthermore, it is not fair to the parties to be required to pursue more than one proceeding dealing with substantially the same facts and issues at the same time.

11Given that the issues in the Application and OLRB complaint arise out of the same factual circumstances and that there is real risk of inconsistent findings of fact because of the likelihood of parallel adjudicative proceedings hearing the same facts, I conclude that in these circumstances the most fair, just and expeditious approach is to defer consideration of this Application pending the completion of the OLRB complaint.

12The Tribunal orders the deferral of the Application pending the conclusion of the OLRB process. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

13I am not seized of this matter.