Esarik v. Shell Canada, 2011 HRTO 214

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Esarik

Applicant

-and-

Shell Canada Ltd and Gary Lawley

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 28, 2011

Citation: 2011 HRTO 214

Indexed as: Esarik v. Shell Canada

1This is an Application filed December 29, 2008, under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The Application alleges discrimination in employment based on age. This Interim Decision deals with a request by the applicant that the matter be scheduled for a hearing after being deferred for a time on consent pending the resolution of a related civil proceeding.

2Section 45 of the Code confirms the Tribunal's authority to defer consideration of an application. Under Rule 14 of the Tribunal's Rules of Procedure (the "Rules"), the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application after providing all parties an opportunity to make submissions.

3Prior to filing their Response to this Application, the respondents requested deferral of the Application pending the conclusion of the civil proceeding. The applicant concurred in the request and the Tribunal's determination that the matter be deferred on consent was communicated to the parties by a Registrar-Transition's letter dated April 2, 2009.

4By letter dated November 2, 2010 the Tribunal wrote to the parties seeking an update of the status of the other proceeding. In response the applicant has requested that the Application be scheduled for a hearing. The respondent opposes the scheduling of this matter for hearing.

5In the human rights complaint underlying this Application the applicant alleges that his right to be free from discrimination in employment on the basis of age has been infringed by the respondents. In particular the applicant states that his contract with the respondent Shell Canada was terminated, in whole or in part because of the applicant's age. The applicant states that he was approaching the age of 65 when the contract with the respondent was terminated on May 7, 2008.

6The background facts appear to be somewhat different in that applicant was not an employee of Shell Canada, in the conventional sense, but rather was president and director of a numbered company, 1191154 Ontario Limited, which had entered into a commercial relationship with Shell Products Canada (SPC) a related entity to the named corporate respondent. The respondents state that the commercial agreements (Agreements) signed with 1191154 Ontario Limited, are the only basis upon which the applicant has a relationship with SPC. SPC terminated the Agreements with the applicant on May 16, 2008.

7The two Agreements and their termination are the subject matter of a civil claim in the Ontario Superior Court of Justice against 1191154 Ontario Limited and the applicant by SPC in October 2008. In turn the applicant and 1191154 Ontario Limited are defending the claim and have brought a counterclaim against SPC. The respondents state that the Agreements and their termination are also the subject matter of the counter-claim.

8The applicant does not dispute the respondents' statement of the background facts but states that the civil proceeding has not progressed expeditiously. As indicated it was commenced in October 2008, but examinations for discovery have yet to be completed, and the applicant states it will be several more years before the civil proceeding will be tried or otherwise determined. The applicant states that he is now in his late 60's and has begun to experience health problems. He is concerned that if this Application is not heard soon it might never be heard. The applicant also states that as time passes potential witnesses may become unavailable to him and memories will fade.

9The respondents state in response to the applicant's view that while there has been delay in the civil proceeding, such delay as there is rests with the applicant. The respondents state that the factual issues raised in this Application are identical to the issues raised in the civil litigation. A hearing of this Application would result in duplicative litigation.

10In Cui v. MSM, 2008 HRTO 449, the Tribunal set out the usual considerations brought to bear in considering these kinds of requests:

In Bhagdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal summarized the jurisprudence regarding deferral as follows, at paras. 18-20:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some 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 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.

The Tribunal has said that it will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues (Krieger v. Toronto Police Services Board, 2008 HRTO 183). The Tribunal has also deferred an application where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution (Klein v. Toronto Zionist Council 2008 HRTO 189). In such circumstances, the Tribunal is concerned about the prospect of concurrent overlapping proceedings and the potential for conflicting findings of fact or law. Where the civil action is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal's proceeding.

11Considering these principles as they apply to these circumstances of this case, I find that it is appropriate to defer this Application pending the conclusion of the civil proceedings. While there is no reference in the pleadings to human rights issues or remedies, at the core of dispute in the civil proceeding, in particular the counter-claim are the Agreements and the reasons for their termination. The substance of the factual and legal issues in the two matters is therefore similar or the same.

12I am not persuaded that the issues raised by the applicant are sufficient to overcome the fact that the issues underlying the cases are largely indistinguishable. Indeed given the similarity of the factual issues any claim of prejudice is entirely speculative at this point – the factual issues underlying this Application may well be determined in large part in the civil proceeding.

13In these circumstances, for the reasons set out above, the Tribunal finds the most fair, just and expeditious manner of proceeding is to continue to defer consideration of this Application pending the conclusion of the civil proceeding. The Tribunal directs the parties' attention to Rule 16 of the Tribunal's Rules for Transitional Applications which outline the process by which the Application may be brought back on after the civil litigation has concluded.

14I am not seized.