Clark v. Spa Vitality, 2011 HRTO 1263

Human Rights Tribunal of Ontario

B E T W E E N:

Laura Clark

Applicant

-and-

Spa Vitality

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 30, 2011

Citation: 2011 HRTO 1263

Indexed as: Clark v. Spa Vitality

1This Interim Decision deals with the respondent’s request to dismiss this Application or, in the alternative defer it pending a determination of the applicant’s claim to the Ministry of Labour for severance and vacation pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

2The applicant filed her Application on February 28, 2011, alleging discrimination in employment on the basis of sex contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It is not clear when the applicant filed her ESA claim, but the respondent received a notice dated February 28, 2011 from the Ministry of Labour advising it of the applicant’s claim for severance pay.

3In its 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 Ministry of Labour. Given that the ESA process for severance and vacation pay is ongoing, it would not be appropriate to dismiss this Application under s. 45.1, which requires the other proceeding to have “dealt with” the substance of the Application.

DECISION AND ANALYSIS

4The Tribunal may defer consideration of an application on such terms as it may determine (Rule 14.1 of the Rules of Procedure). Deferral of an application ensures that legal processes dealing with the same issues do not run concurrently. It is not automatically invoked simply because the parties are involved in other legal processes, but is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case.

5Some 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 types 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.

6The applicant alleges in her Application that she was sexually harassed at work. She has requested remedies that do not appear to overlap in any way with the ESA remedial request. It is not possible to determine the level of factual overlap between the two legal processes in the absence of any details about the ESA claim. The respondent simply received a notice of the claim, not the claim itself.

7Given the absence of information, I am of the view that deferral of this Application to the ESA process at this stage is not appropriate.

8I am not seized of this matter.