Marianne Amodeo v. Rodrigo Cartagena, Chantel LaFreniere and Gary Loder, 2011 HRTO 559

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marianne Amodeo

Applicant

-and-

Rodrigo Cartagena, Chantel LaFreniere and Gary Loder

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: March 21, 2011

Citation: 2011 HRTO 559

Indexed as: Amodeo v. Cartagena

WRITTEN SUBMISSIONS

Marianne Amodeo, Applicant ) Self-represented

Rodrigo Cartagena, )

Chantel LaFreniere and ) William D. Anderson, Counsel

Gary Loder, Respondents )

1The applicant filed this Application on December 18, 2010, alleging discrimination in employment on the basis of association and reprisal contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant had previously filed two applications to the Ontario Labour Relations Board (“OLRB”) alleging a violation of s. 50 of the Occupational Health and Safety Act, R.S.O. 1990 c. O.1 (the “OHSA”).

2This purpose of this Interim Decision is to determine whether the Application should be deferred pending the outcome of the OHSA applications. The Tribunal issued a Notice of Intent to Defer on January 21, 2011. Both the applicant and respondents filed written submissions in response to this Notice.

3The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. 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.

4In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal articulated the problem with concurrent legal proceedings and set out the factors that might be taken into account:

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. 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.

5In the instant case, there is significant overlap between the allegations in the Application and the allegations in the OHSA applications. The applicant named two of the three above-noted respondents as respondents in her OHSA applications. The OLRB has had a pre-hearing with respect to the first application before it. Both OHSA applications are in the queue awaiting a hearing before a Vice-Chair of the OLRB. No hearing dates have been set.

6The applicant opposes deferral on the basis that the hearing before the OLRB could take months before it is evaluated and heard. The applicant believes that the process before this Tribunal could take place more expeditiously. However, at this stage, the respondents have not filed their Responses. Once this done and the applicant is afforded the opportunity to file a Reply, her matter will be put in the queue at the Tribunal to await scheduling. Once a hearing is scheduled, the disclosure and production obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure are triggered. Ultimately, it would appear that the matter before the OLRB will be heard before a hearing before this Tribunal can be scheduled.

7The applicant also points to the fact that she is requesting an apology to a third party, a person on whose behalf she states she advocated, in her OHSA applications. However, this is not relevant to whether her Application before this Tribunal is heard in the normal course or deferred.

8Finally, the applicant submits that allowing her Application to proceed concurrently with the OHSA applications will “create a more equal playing field.” Although the applicant does not specify why she feels this would be, one can infer from her submissions that the spectre of two separate legal proceedings would put additional pressure on the respondents to resolve her dispute with them. This is not an appropriate factor to be considered by this Tribunal.

9In light of the problems caused by concurrent proceedings, the overlap between the allegations and parties, and the absence of a compelling reason to proceed with the Application to this Tribunal, the Tribunal is of the view that deferral to the OLRB process is appropriate. The Application will be deferred pending completion of the OLRB process.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the OLRB process.

11The applicant has made a request in writing to the Tribunal to add her employer as a respondent to this proceeding. The proper form for such a request is via a Request for Order During Proceedings (Form 10), which can be found on the Tribunal’s website. Any Form 10s filed at this stage will be dealt with by the Tribunal should the Application be brought back on.

12I am not seized of this matter.