Edwards v. Heydary Hamilton, 2011 HRTO 421

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kai Edwards

Applicant

-and-

Heydary Hamilton Professional Corporation

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: February 28, 2011

Citation: 2011 HRTO 421

Indexed as: Edwards v. Heydary Hamilton

WRITTEN SUBMISSIONS

Kai Yorke Edwards, Applicant ) Allison A. Thorton, Counsel

Heydary Hamilton Professional Corporation, )

Respondent ) Olanyi Parsons, Counsel

INTRODUCTION

1This is an Application filed October 14, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, (the “Code”) as amended. This Interim Decision deals with a Request to Defer by the respondent by which the Application would be deferred pending the outcome of a reconsideration of an Ontario Ministry of Labour Order made pursuant to the Ontario Employment Standards Act, S.O. 2000, c. 41 (ESA) on October 20, 2010.

2The applicant opposes deferral because the Ministry of Labour reconsideration proceedings are “well underway” and therefore should be concluded before the matter proceeds to hearing before the Tribunal.

3Deferral 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.

4While 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. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10; Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779,.

5As the applicant admits in her submissions,

(…) the parties…are the same in both the Employment Standards Act proceedings and this complaint [the Tribunal Application]. (….)The Employment Officer’s conclusion that the firing of Kai was a reprisal for the purposes of the Employment Standards Act is tantamount to a finding that her firing was a reprisal for asserting her rights under the Human Rights Code. The [Employment Standards Act] provisions in question (requiring employers to hold positions open for employees on pregnancy/parental leave) are remedial legislation to protect employees from discrimination on the basis of pregnancy and family status.

6The 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. While not identical, 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. See Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448.

DECISION

7It is not fair to 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.

8The Tribunal has generally deferred applications where there is an ongoing ESA proceeding the subject matter of which is extremely similar to that of the Application. A review of the nature of the ESA complaint filed by the applicant reveals it is virtually identical to the subject matter of the Application.

9In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the ESA 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.