Dick v. Adesa Auctions Corp Canada (Kitchener), 2011 HRTO 1942

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Azalea Dick

Applicant

-and-

Adesa Auctions Corp Canada (Kitchener)

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: October 31, 2011

Citation: 2011 HRTO 1942

Indexed as: Dick v. Adesa Auctions Corp Canada (Kitchener)

Background

1This is an Application filed June 30, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), as amended.

2This interim decision deals with a Notice of Intent to Defer (“NOID”) issued by the Tribunal on August 11, 2011, by which the Application would be deferred pending the outcome of a claim filed by the applicant under the Ontario Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the “ESA claim”). The ESA claim alleges breaches of the pregnancy and parental leave provisions of the Employment Standards Act (“ESA”).

3The NOID requested the parties respond with submissions with regard to the deferral issue by August 11, 2011.

4No submissions were subsequently received from either party.

Decision

5Deferral 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.

6While 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).

7The Tribunal has deferred applications where there is an ongoing ESA proceeding dealing with pregnancy and parental leave, see Rogers v. Holcim (Canada), 2011 HRTO 867. A review of the nature of the ESA claim filed by the applicant reveals it is virtually identical in many ways to the subject matter of the Application.

8The remedies that are available to a person under the ESA and the Code are potentially quite similar, especially in cases dealing with pregnancy. Pursuant to section 104(1) of the ESA, if an Employment Standards Officer finds that an employer has contravened the pregnancy leave provisions of the ESA, the Ministry of Labour may order that the employee be compensated for loss or that she be reinstated, or both compensated and reinstated. Compensation can include compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering. The remedies potentially available under the ESA in pregnancy cases are thus similar, although perhaps not identical, to the remedies that are available under the Code: Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448. It is not fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Clearly there is a potential for inconsistent findings in the two proceedings. Inconsistent findings by two different adjudicative bodies may occur because the cases are presented differently or because different statutes or rules apply. It is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues: Golon, supra.

ORDER

9In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the final conclusion of the Employment Standards Act proceeding. The Tribunal directs the parties’ attention to 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 another process.

10I am not seized of this matter.