Tanney v. Leon Rivlin Medicine Corporation, 2011 HRTO 1315

Human Rights Tribunal of Ontario

Between:

Stephanie Tanney Applicant

-and-

Leon Rivlin Medicine Corporation and Leon Rivlin Respondents

Interim Decision

Adjudicator: Alan G. Smith Date: July 8, 2011 Citation: 2011 HRTO 1315 Indexed as: Tanney v. Leon Rivlin Medicine Corporation

Written Submissions By:

Leon Rivlin Medicine Corporation and Leon Rivlin, Respondents: Lai-King Hum, Counsel

INTRODUCTION

1This is an Application filed October 7, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment on the basis of sex. The Application seeks, among other things, a monetary remedy for loss of income due to the termination of the applicant’s employment by the respondent employer.

2This Interim Decision deals with a Notice of Intent to Defer (“NOI”) issued by the Tribunal on May 18, 2011, pursuant to Tribunal Rule 14.

3The basis for the NOI is an Ontario Superior Court Statement of Claim issued by the applicant against the respondents on July 26, 2010. The Statement of Claim alleges wrongful dismissal of the applicant by the respondent employer. Although the timetable for the civil action is not certain, it does appear that the parties are fully engaged in taking steps to pursue it.

4The NOI requested written submissions from the parties with regard to the deferral issue by June 18, 2011.

5On June 2, 2011, the respondents filed submissions in support of the deferral of the Application. No submissions were received from the applicant.

DEFERRAL

6The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. While 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.

7In the present case, there are factors weighing against deferral. For example, the Application and Civil Action deal with different legal theories i.e., the Civil Action makes no mention of the Code. However, a deferral under section 45 of the Code does not require the conclusion that the other proceedings must potentially dispose of all of the issues in the Application, see Bradshaw v. Complex Services, 2010 HRTO 1215 and Chowdhury v. Burger King Restaurants of Canada, 2011 HRTO 674.

8The close relationship between the facts and issues in the two proceedings strongly favours deferral. The key issue at the heart of the Civil Action, the allegation that the respondent employer unlawfully terminated the applicant’s employment, is also the central issue covered by the Application. The outcome of the Civil Action may have a particular bearing on the key issue of compensation for loss of employment in the event that the applicant succeeds in showing an infringement of her Code-protected rights at the Tribunal, see, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053 and Chowdhury above. In my view, the considerable factual overlap between the two proceedings, the potential for the Court to determine some of the issues in this Application, the rational and orderly litigation of the various issues between the applicant and her employer favour deferral, see O’Brien v. Burlington (City), 2009 HRTO 1818.

ORDER

9I find that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s Civil Action. The parties’ attention is directed to Tribunal 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 the Civil Action.

10I am not seized of this matter.