William Hudson v. Convoy Supply Ltd., 2011 HRTO 278

Human Rights Tribunal of Ontario

B E T W E E N:

William Hudson

Applicant

-and-

Convoy Supply Ltd.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: February 9, 2011

Citation: 2011 HRTO 278

Indexed as: Hudson v. Convoy Supply

1This Interim Decision deals with the respondents’ request to defer this Application pending a determination of the applicant’s claim to the Ministry of Labour for severance pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

2The applicant filed his Application on October 6, 2010, alleging discrimination in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). It is not clear when the applicant filed his ESA claim, but the respondent received a notice from the Ministry of Labour advising it of the applicant’s claim for severance pay on November 9, 2010.

3In its Response to this Application, the respondent asked that the Application be dismissed pursuant to s. 45.1 of the Code or, in the alternative, deferred pending the outcome of the proceeding before the Ministry of Labour. Given that the process for severance pay is ongoing, it would not be appropriate to dismiss this Application under s. 45.1, which requires the other proceeding to have “dealt with” the substance of the Application.

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 his Application, the applicant alleges that he developed health problems while travelling in the Philippines, and that he was unable to get the respondent to assist him to access his medical benefits, resulting in him being unable to get home. When he did get home, he alleges that the respondents improperly terminated his position on the basis of a health-related absence from work.

7It is not possible to determine the level of overlap between the two legal processes in the absence of any details about the ESA claim. The respondent simply received a notice of the claim for severance pay, not the claim itself. While the respondent points out that there are sections in the ESA concerning the provision of extended health benefits, but there is nothing on the face of the material provided by the respondent indicating that the applicant has made a claim under these provisions or that these provisions are even applicable to his fact situation.

8Given the absence of information, I am of the view that deferral of this Application to the ESA process at this stage is not appropriate.

9I am not seized of this matter.