Amit Kohli v. Flexity Solutions, 2011 HRTO 1754

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amit Kohli

Applicant

-and-

Flexity Solutions

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: September 26, 2011

Citation: 2011 HRTO 1754

Indexed as: Kohli v. Flexity Solutions

1This Interim Decision concerns whether the Tribunal should defer an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The applicant filed his Application on July 8, 2011, alleging discrimination in employment on the ground of family status. The applicant alleges that his employment was terminated on June 2, 2011, the day he attempted to return from a parental leave.

2The applicant advised that he filed a claim under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the “ESA claim”) on June 3, 2011, in which he also asserts that he was released upon his return from parental leave. In that claim, he also makes a claim for unpaid vacation, holiday and termination pay.

3The Tribunal sent a Notice of Intent to Defer on August 15, 2011. Both the applicant and the respondent filed written submissions in response to that Notice.

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.

6In the circumstances of this case, I find that deferral is appropriate. While there are some distinct differences in the nature of the ESA claim and the Application, most notably the request for vacation, holiday and termination pay, both the ESA claim and the Application significantly overlap in that they focus on the respondent’s decision to terminate the applicant’s employment following his return from parental leave. There is also significant overlap in the remedies available under the two regimes.

7The applicant requests that the Tribunal not defer his Application because there had already been a delay (at the time, 2 ½ months) in the processing of his ESA claim and he is feeling the financial burden of not being employed. He states that he was not advised of when Employment Standards might review his case. However, that case was commenced a month earlier than the Application before this Tribunal, and in all likelihood it will be reached before this Tribunal can proceed with the Application.

8Consequently, the Application will be deferred pending the outcome of the applicant’s ESA claim.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the applicant’s claim under the ESA has been concluded.

10I am not seized of this matter.