Jasna Bacvic-Khan v. Hudson’s Bay Company, 2011 HRTO 572

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jasna Bacvic-Khan Applicant

-and-

Hudson’s Bay Company Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: March 22, 2011 Citation: 2011 HRTO 572 Indexed as: Bacvic-Khan v. Hudson’s Bay

1This Interim Decision deals with the respondents’ Request to defer this Application pending a determination of the respondent’s appeal to the Ontario Labour Relations Board (“OLRB”) of an order requiring it to pay severance and termination to the applicant under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

2The applicant filed her Application on March 2, 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”). Shortly before filing her Application, the applicant also filed an ESA claim for termination and severance pay.

3An undated copy of the reasons and order of the Employment Standards Officer shows that Officer did not accept the respondent’s argument that the applicant’s “failure to report to work constituted wilful misconduct” and ordered the respondent to pay termination and severance pay. The respondent advises that it is seeking to review this award to the OLRB.

4In 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 OLRB. 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.

5The applicant was served with a copy of the Response and invited to file written submissions concerning the respondent’s request for deferral and dismissal. Although the applicant filed a Reply, she did not address either the deferral or the dismissal under s. 45.1 issues. The time for filing such submissions has now passed.

DECISION AND ANALYSIS

6The 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.

7Some 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.

8In her Application, the applicant alleges that she suffered from mental health problems – in particular depression – which the respondent failed to accommodate. Indeed, she alleges that the depression was made worse by the harassing conduct of her co-workers, which the respondent failed to stop. As a result, she was off work and unable to respond to the respondent’s telephone calls concerning her return to work. This, in turn led to the termination of her employment.

9The reasons of the Employment Standards Officer indicate that the respondent argued that the applicant frustrated her employment contract. However, the Officer found that the exemptions relating to frustration of contract could not be applied because the frustration was the result of illness or injury. The Officer also concluded that the applicant did not engage in wilful misconduct.

10There is obviously some overlap between the factual findings under the ESA and the Code, but it would appear that there are areas where no overlap exists. Significantly, the reasons of the Officer do not address the failure to accommodate or the harassment.

11Moreover, while the applicant is seeking damages arising from her the termination of her employment in her Application, she is seeking considerably more than the statutory minimums under the ESA. Clearly any amount awarded under the ESA would have to be deducted from any award she might receive if successful in demonstrating that her termination was discriminatory, but that could be factored into any order made in this process.

12Finally, it is uncertain when the OLRB might deal with the review. At this stage all the respondent was able to do was to advise that it intends to appeal the decision of the Employment Standards Officer.

13Given the absence of information and the lack of significant overlap between the two processes, I am of the view that deferral of this Application to the ESA process is not appropriate. The respondent’s Request for deferral is denied.

14I am not seized of this matter.