McLachlan v. Forensic Investigations Canada, 2011 HRTO 1225

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer McLachlan Applicant

-and-

Forensic Investigations Canada (FIC) Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: June 27, 2011 Citation: 2011 HRTO 1225 Indexed as: McLachlan v. Forensic Investigations Canada

WRITTEN SUBMISSIONS BY:

Jennifer McLachlan, Applicant ) Self Represented Forensic Investigations Canada (FCI), ) Andrew J. McCreary, Counsel Respondent )

Background

1This is an Application filed January 31, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, (the Code) as amended. The respondent filed a Response on April 26, 2011.

2This interim decision deals with a Request to Defer by the respondent by which the Application would be deferred pending the outcome of a claim filed by the applicant under the Ontario Employment Standards Act, 2000, S.O. 2000, c.41 as amended (the “ESA claim”). The ESA claim alleges breaches of the pregnancy, parental leave and anti-reprisal provisions of the Employment Standards Act (ESA).

3The applicant filed an initial Response to the request to defer on April 1, 2011, and made further submissions with regard to the deferral issue in a Reply filed on June 20, 2011.

4The respondent argues that deferral is appropriate because both the Application and ESA claim involve the same set of facts surrounding the termination of the Applicant’s employment. The respondent further argues that the remedies proposed by the applicant also appear to overlap both proceedings especially the claim for loss of earnings.

5The applicant appears to oppose deferral on two grounds:

a) That deferral of the Tribunal Application pending the outcome of the ESA claim will aggravate her stress-related health problems;

b) That the Employment Standards Officer involved in investigating her ESA claim has indicated that her decision will be completed by June 16, 2011, therefore concluding the ESA process.

Decision

6Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

7While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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. (Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779).

8The Tribunal has generally deferred applications where there is an ongoing ESA proceeding the subject matter of which is extremely similar to that of the Application, see Rogers v. Holcim (Canada), 2011 HRTO 867. A review of the nature of the ESA claim filed by the applicant reveals it is virtually identical in many ways to the subject matter of the Application.

9The Supreme Court of Canada has found that statutory tribunals that are empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the Code to a matter properly in front of them (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, 2006 SCC 14). It is not clear if this applies to a decision of an Employment Standards Officer although it would clearly apply to the Ontario Labour Relations Board (OLRB) which hears appeals under the ESA from decisions of an Employment Standards Officer.

10The remedies that are available to a person under the ESA and the Code are potentially quite similar, especially in cases dealing with pregnancy. Pursuant to section 104(1) of the ESA, if an Employment Standards Officer finds that an employer has contravened the pregnancy leave provisions of the ESA the Ministry of Labour may order that the employee be compensated for loss or that she be reinstated, or both compensated and reinstated. Compensation can include compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering. While not identical, the remedies potentially available under the ESA in pregnancy cases are thus similar, although perhaps not identical, to the remedies that are available under the Code: Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448.

11It is not fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Clearly 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 apply. 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, supra.

12In this same vein, I find that the applicant’s argument that deferral of her Application will cause her additional stress is illogical. If the ESA claim and the Application proceed at the same time, she will be required to simultaneously conduct proceedings in two different forums.

13The applicant also appears to argument that deferral is not possible because the ESA claim process has, or will shortly, conclude with the rendering of a decision by an Employment Standards Officer. This ignores that fact that, as alluded to above, section 116 of the ESA allows a party to a decision of an Employment Standards Officer to apply for a review of the decision by the Ontario Labour Relations Board (OLRB). Such an application must be made within thirty days of receipt of the Officer’s decision.

14A possible reason not to defer an Application is that deferral will likely postpone the hearing of the Application by the Tribunal. In general, it is preferable to adjudicate cases close in time to the events in question and applicants and respondents are entitled to expect the Tribunal to deal with Applications in a timely fashion. The delay in adjudicating the Application may be longer if the other proceeding is in the early stages.

15However, if an Applicant has commenced another proceeding that raises the same human rights issues, it still may still be appropriate for the Tribunal to defer the Application until the other proceeding is complete, even if the other proceeding is still in the early stages, see Chan v. Drake International, 2009 HRTO 1067.

ORDER

16In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the final conclusion of the Employment Standards Act proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an Application after the conclusion of another process.

17I am not seized of this matter.