Human Rights Tribunal of Ontario
Between:
Melinda Toth Applicant
-and-
Brian Cherney Respondent
Interim Decision
Adjudicator: Geneviève Debané Date: July 8, 2011 Citation: 2011 HRTO 1309 Indexed as: Toth v. Brian Cherney
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on April 15, 2011. On May 18, 2011, the Tribunal sent a Notice of Intent to Defer the Application to the parties, which advised that they had 30 days to make submissions on the issue of deferral. Neither party filed submissions with the Tribunal.
2This Interim Decision addresses the issue of whether the Application should be deferred pending the outcome of a claim filed by the applicant with the Ministry of Labour pursuant to the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the "ESA claim").
3The Application alleges discrimination in employment on the grounds of sex, pregnancy and reprisal. The Applicant alleges that her employment was terminated because of her pregnancy.
4The applicant has provided the Tribunal with a copy of the ESA claim dated April 14, 2011 against the respondent, which alleges, amongst other things, that her termination from employment was a reprisal because of her pregnancy and therefore contrary to the ESA.
Decision
5The 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 of the Tribunal's Rules of Procedure). The Tribunal must 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.
6The Tribunal has generally deferred applications where there is an ongoing ESA proceeding and if the subject matter is similar to that of the application, see Rogers v. Holcim (Canada), 2011 HRTO 86.
7Applying these principles to this case, I find it is appropriate to defer this Application pending the conclusion of the ESA claim. A review of the nature of the ESA claim filed by the applicant reveals it is virtually identical to the subject matter of the Application. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings. Therefore, it is most fair, just and expeditious to defer this Application.
8The 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.
9I am not seized of this matter.
Dated at Toronto, this 8th day of July, 2011.
"Signed by"
Geneviève Debané Vice-chair