Jay Brass v. Fairweather o/a INC Group and Geralyn Ocampo, 2011 HRTO 255

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jay Brass

Applicant

-and-

Fairweather o/a INC Group and Geralyn Ocampo

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: February 4, 2011

Citation: 2011 HRTO 255

Indexed as: Brass v. Fairweather

1This is an Application filed on September 23, 2010 under 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 disability and reprisal.

2In their Response, the respondents seek deferral of the Application as there is a pending application before the Ministry of Labour. The Response was served on the applicant along with notification that the respondents had asked the consideration of this Application be deferred pending completion of the ongoing proceeding before the Ministry of Labour.

3The applicant has not filed a Reply or submissions addressing the deferral issue and the time for him to do so has now passed.

DECISION

4Deferral 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. 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 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 and the steps that have been taken to pursue them.

5Deferral is not automatically indicated simply because the parties are involved in other legal proceedings. Section 40 of the Code requires the Tribunal to adopt procedures and practices that offer the best opportunity for a fair, just and expeditious resolution of the merits of an application.

6In this case the claim before the Ministry of Labour is a claim under the Employment Standards Act, 2000 (the "ESA") for "overtime pay" for a 5 month period in 2010, and "limits on hours of work/eating periods/rest periods". The Application before the Tribunal concerns discrimination on the basis of disability and reprisal. This is not an appropriate case for deferral as the ESA claim does not appear to raise human rights issues.

7While it may be preferable for two proceedings to unfold sequentially rather than concurrently in order to lessen the possibility of conflicting findings of fact, there is no obvious reason in this case why the Tribunal's processes should be deferred for an undetermined period of time given the Tribunal's goal of ensuring the fair, just and expeditious resolution of the merits of matters before it. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

8Finally, if there is a concern about the potential for double recovery, it is open to the respondents to ask any tribunal to take account of damages awarded in a related proceeding in an assessment of the appropriate damages, if any, in the matter before it.

9I am not seized of this matter.