Ahmed v. Bains Foods Inc. c.o.b. as Tim Hortons, 2011 HRTO 641

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rahma Ahmed

Applicant

• and-

Bains Foods Inc. c.o.b. as Tim Hortons

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: April 4, 2011

Citation: 2011 HRTO 641

Indexed as: Ahmed v. Bains Foods

INTRODUCTION

1The applicant filed an Application with the Tribunal pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of sex (pregnancy). The purpose of this Interim Decision is to determine whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of proceedings under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”).

BACKGROUND

2The applicant filed a claim under the ESA against the respondent in respect of the events giving rise to this Application, namely the termination of her employment when the respondent learned she was pregnant. An employment standards officer conducted an investigation and concluded that the respondent violated the pregnancy leave provisions of the ESA. The officer issued an Order to Pay Wages/Compensation in favour of the applicant on January 28, 2011. The award included compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, emotional pain and suffering and Reasonable Forseeable Damages.

3On March 8, 2011, the respondent filed a Request for Order During Proceedings, seeking deferral of the Application until conclusion of proceedings under the ESA. The respondent noted that it had filed a Request for Review of the employment standards officer’s decision with the Ontario Labour Relations Board (“OLRB”). The respondent submitted that it is likely that the OLRB would conclude its proceedings before the Tribunal and the OLRB’s decision would likely dispose of the Application. The applicant did not respond to the Request.

DECISION

4The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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 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 Calabria v. DTZ Barnicke, 2008 HRTO 411 and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

6Given the Request for Review in progress, and that the issues in the current Application and the ESA proceeding are similar and arise out of the same factual circumstances, as well as the potential for overlapping remedies, the Tribunal finds that it is appropriate to defer consideration of this Application pending the conclusion of the ESA proceeding.

7If 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.

8I am not seized of this matter.