VandenBerg v. Enterprises Marian Richard, 2011 HRTO 64

Human Rights Tribunal of Ontario

Between:

Linda VandenBerg Applicant

-and-

Enterprises Marian Richard Inc., Joe Basden and Marian Richard Respondents

Interim decision

Adjudicator: Brian Cook Date: January 7, 2011 Citation: 2011 HRTO 64 Indexed as: VandenBerg v. Enterprises Marian Richard

Reasons for Decision

1The applicant was employed at a Canadian Tire store. She alleges discrimination in employment on the grounds of family status, sex including sexual harassment and pregnancy, and marital status.

2On October 18, 2010, the Tribunal issued Interim Decision 2010 HRTO 2094. The Interim Decision discussed two Applications that the applicant had filed with the Tribunal. The Interim Decision found and directed as follows:

1. The two Applications were joined because they deal with the same factual issues.
2. Enterprises Marian Richard Inc. was added as a respondent in both Applications.
3. There was no reason to defer consideration of the Applications because the applicant had filed a claim under the Employment Standards Act (ESA). The Employment Standards Officer had come to a decision and there was no indication that the matter was under appeal.
4. The Applications would not be dismissed under section 45.1 of the Code because the ESA claim did not deal with the human rights issues raised in the Application.

3On November 25, 2010, counsel for the respondents filed a letter with the Tribunal seeking reconsideration of the Interim Decision. The respondents sent a copy of the letter to the applicant and she has not made any submissions in response.

4The letter indicates that the applicant had filed a third Application with the Tribunal in August 2010, which was not considered in the Interim Decision. The Tribunal confirms that it has received two Applications from the applicant. The "third Application" referred to by the respondents is the Application filed under file number 2010-05640-I. When the first Application was received, the Tribunal noted that it was not complete, and asked the applicant to file a completed Application. This is what the respondents received. While it is understandable that the respondents thought that this represented a third Application, it was in fact only a complete version of the Application already filed.

5The respondents advise that the respondents have filed an appeal of the decision of the Employment Standards Officer with the Ontario Labour Relations Board (the "OLRB"). The appeal was filed on July 8, 2010, although the OLRB did not confirm this until it issued a Confirmation of Filing Notice dated November 22, 2010. The respondents ask that the Tribunal consider the fact that there is in fact an ongoing appeal of the decision of the Employment Standards Officer and reconsider the Interim Decision on that basis and to defer consideration of the Application until the process at the OLRB has been completed.

6Some 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 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.

7Based on the new information that an appeal has been filed with the OLRB in respect of the matters dealt with by the Employment Standards Officer, I find that it is appropriate for the Tribunal to defer consideration of the Applications. While the decision of the Employment Standards Officer does not directly deal with the human rights issues raised in the Applications, the ESA proceeding and the Applications arise out of the same factual circumstances. There is a potential for overlapping remedies. The Confirmation of Filing Notice from the OLRB indicates that the Board's Registrar will set a hearing date after January 11, 2011, if the parties have not reached a settlement by that time.

8If the applicant intends to proceed with this Application following the conclusion of the ESA proceeding, the applicant is directed to contact the Registrar no later than 60 days after the conclusion of the ESA proceeding to make a request to proceed, and shall indicate the date the ESA proceeding concluded and include a copy of any decision or order in the ESA proceeding.

9I am not seized of this matter.