Smith v. Vannatter Group, 2011 HRTO 484

Human Rights Tribunal of Ontario

B E T W E E N:

David Smith Applicant

-and-

Vannatter Group Inc., Transcast Precision Inc., Dean Topolinski, Debra Vannatter, Harley Vannatter and William Adams Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: March 8, 2011 Citation: 2011 HRTO 484 Indexed as: Smith v. Vannatter Group

WRITTEN SUBMISSIONS

Dean Topolinski, Respondent ) Self-represented Transcast Precision Inc., Respondent ) Ian Wright, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The applicant alleges discrimination on the grounds of disability in the termination of his employment.

2In the Application, the applicant stated that he was employed by Vannatter Group Inc. He states that he believes Vannatter Group Inc. has ceased operations and has been purchased by Transcast Precision Inc. ("Transcast") and Dean Topolinski. The applicant also indicated that he had filed a grievance in relation to issues raised in the Application.

3The respondents deny the allegations of discrimination or deny any knowledge of or liability for the alleged violations.

4The matter was set down for hearing.

5Following a mediation facilitated by the Tribunal, the applicant, Transcast and Topolinski orally requested that consideration of the Application be deferred pending the outcome of a successor employer determination before the Ontario Labour Relations Board ("OLRB").

6The Tribunal issued a Case Assessment Direction on February 1, 2011 seeking submissions from the parties regarding the deferral issue.

7The respondents Transcast and Topolinski have filed written submissions confirming that the matter before the OLRB is ongoing. They seek the dismissal of the Application and, in the alternative, ask that it be deferred pending the outcome of the OLRB proceeding.

8No other party has provided written submissions pursuant to the Case Assessment Direction.

IS IT APPROPRIATE TO DEFER CONSIDERATION OF THE APPLICATION?

9Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure ("Rules").

10Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

11The Tribunal will generally defer an application where there is an ongoing proceeding based on the same facts and issues. Deferral of an application ensures that proceedings dealing with similar or overlapping issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

12Both the Application and the ongoing successor employer matter before the OLRB raise issues regarding the potential liability of some of the respondents. I am satisfied that there is significant overlap in these two matters and that the most fair, just and expeditious manner of proceeding is to defer the Application.

13Accordingly, the Application is deferred pending the conclusion of the OLRB proceedings. The scheduled hearing dates are adjourned.

14The Tribunal directs the parties' attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed once the reconsideration is complete.

15At this stage of the proceedings and in light of the deferral, it is not necessary for me to determine the Request for early dismissal. The Tribunal may address the request for dismissal if the Application is reactivated.

16I am not seized of this matter.