Desousa v. Steel-Craft Door Products Ltd., 2011 HRTO 1165

Human Rights Tribunal of Ontario

Between:

Mike Desousa Applicant

-and-

Steel-Craft Door Products Ltd. Respondent

Interim Decision

Adjudicator: Maureen Doyle Date: June 15, 2011 Citation: 2011 HRTO 1165 Indexed as: Desousa v. Steel-Craft Door Products Ltd.

Written Submissions By: Mike Desousa, Applicant (Self-Represented) Steel-Craft Door Products Ltd., Respondent (Laura Cassiani, Counsel)

Reasons for Decision

1This Interim Decision addresses the issue of whether the Application should be deferred pending the outcome of a proceeding before the Ontario Labour Relations Board (the "OLRB").

2The Applicant was employed by the respondent company. He filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on February 7, 2011, alleging that the respondent had discriminated against him in employment on the basis of disability.

3In particular, he alleges that after his return to work following a workplace accident, the employer placed him on modified duties which he could not perform without experiencing pain. He alleges that there was no further accommodation offered and that his employer terminated his employment rather than accommodate his disability.

4Prior to filing this Application, the applicant filed a claim under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended ("ESA"), with respect to termination pay. He argued that his employer gave up trying to accommodate him and terminated his employment. The Employment Standards Officer issued a decision in which she found that he was entitled to termination pay. The respondent paid the termination pay and appealed the decision to the OLRB. The proceeding before the OLRB has not been completed.

5In response to this Application, the respondent asked that the Application be dismissed pursuant to s. 45.1 of the Code, or in the alternative, deferred pending the outcome of the proceeding before the OLRB. Given that the OLRB process is ongoing, it would not be appropriate to dismiss this Application on this basis. Section 45.1 requires the other proceeding to have "dealt with" the substance of the Application.

6Rule 14.1 of the Tribunal's Rules of Procedure states 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.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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.

8It may 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. Additionally, there is a potential for inconsistent findings in the two proceedings. Inconsistent findings by two different adjudicative bodies may occur because the cases are presented differently or because different statutes or rules may apply. However, 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.

9The applicant opposes deferral, stating that that the proceeding now before the OLRB concerns whether he is owed termination pay. In considering this question, the ESA decision considered whether he was guilty of "wilful misconduct" in relation to his absences from work, and not allegations of discrimination. According to the ESA decision, the Applicant did allege that the respondent had given up trying to accommodate him. In her decision, the Employment Standards Officer found that he had not been guilty of wilful misconduct and also found that it appeared that "the employer stopped trying to accommodate him and instead decided to terminate his employment". Whether the claim under the ESA alleges discrimination or not, it is clear that it is based on the same factual allegations as the Application. Thus there is a potential for duplication of evidence if the two proceedings were to run concurrently and the possibility of inconsistent findings of fact.

10In his Application, the applicant seeks a remedy in the form of financial compensation which includes wages as well as other non-wage related items. The ESA decision resulted in an Order to Pay and payment by the respondent of wage-related items. While not identical, there is overlap in the remedy available in the proceedings. In his Application, the applicant seeks considerably more than the statutory minimums available to him under the ESA, but given the significant overlap in the circumstances underpinning the two proceedings, I do not find that the difference in remedies available outweighs the potential for duplication of evidence and the possibility of inconsistent finings of fact. Rather, I find that in light of this significant overlap, deferral is the most fair, just and expeditious way of proceeding with the Application.

11In light of these considerations, I am satisfied that the Application should be deferred until the OLRB proceeding has concluded. The 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 not seized of this matter.