HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Chigoziri Ogbonna-Ehirim Applicant
-and-
Holiday Inn & Suites Mississauga Respondent
INTERIM DECISION
Adjudicator: Eric Whist Date: September 23, 2011 Citation: 2011 HRTO 1750 Indexed as: Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga
1This Application was filed on June 13, 2011 under, the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of disability, marital status and reprisal. This Interim Decision addresses the respondent’s Request to defer the Application.
BACKGROUND
2The applicant was employed in the respondent’s hotel. The Application alleges that the applicant was obliged to stand while working at the hotel’s front desk even thought she explained to management that she had a bad back and offered to bring in a medical note to support her claim that she had a bad back. The Application alleges the requirement that she stand at the front desk constitutes discrimination on the basis of disability.
3The Application also alleges that she was denied health benefits on the basis that she had access to her husband’s health benefits while health benefits were provided to every other full time hotel staff member regardless of their marital status. The Application alleges that this constitutes discrimination on the basis of marital status.
4The Application alleges that the applicant repeatedly asked for her health benefits and outstanding overtime pay and was threatened by a manager when she stated that she would be filing a claim with the Employment Standards Branch of the Ontario Ministry of Labour. Several days later the applicant’s employment was terminated and she was accused of fraudulent behaviour. The Application states that these actions by the respondent constitute discrimination based on reprisal.
5In its Response to the Application the respondent requests that the Tribunal defer consideration of the Application on the basis that there is a proceeding underway with the Ministry of Labour that addresses the facts of the Application. The respondent provides a letter from the Ministry of Labour stating that the applicant has filed a claim under the Employment Standards Act 2000 (“ESA”) and that an Employment Standards Officer will be holding a meeting with the parties on August 16, 2011 to consider “alleged unpaid overtime, termination pay and reprisal”.
6On August 29, 2011 the Tribunal sent a letter to the applicant stating that it was providing the applicant with a copy of the respondent’s Response in which the respondent had requested a deferral of the Application. The letter states that the applicant must file a Reply to the Response (Form 3) by September 12, 2011 that includes complete submissions in response to the respondent’s Request to defer. The Tribunal has not received a Reply from the applicant as of the date of this Interim Decision.
DECISION
7The Tribunal may defer consideration of an application on such terms as it may determine and on its own initiative. See Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral 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. In considering whether to defer an application the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
8I am of the view that the Application should be deferred until the claim under the ESA is resolved. I make this decision even though it appears that there is limited overlap in the issues that the applicant raises in her claim under the ESA and in her Application. I am satisfied, based on the information before me, that the proceeding before the Employment Standards Officer will not likely deal with the allegations of discrimination based on disability or marital status or the underlying facts related to these two allegations given that the stated focus of the proceeding before the Employment Standards Officer are the issues of overtime and termination pay and reprisal. However, in dealing with the issue of reprisal the proceeding before the Employment Standards Officer may well substantively deal with the issue of reprisal as raised in the Application given that the Application alleges that the applicant was subject to reprisal after indicating that she intended to file a claim under the ESA. Deferring the Application will ensure that there will be no concurrent proceedings addressing the issue of reprisal that could lead to inconsistent decisions on facts or law.
9The applicant’s claim under the ESA is well underway given that a hearing with an Employment Standards Officer was scheduled for August 16, 2011. The current status of this other proceeding is another reason to grant the Request to defer.
10Finally I note that I have no submissions from the applicant opposing the Request to defer even though she was directed to provide submissions on this issue.
ORDER
11The Application is deferred pending the conclusion of the ESA proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4of the Tribunal’s Rules of Procedure, which 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
Dated at Toronto this 23rd day of September, 2011.
”signed by”__________ Eric Whist
Vice-chair