Sarah Rogers v. Holcim (Canada) Inc., 2011 HRTO 867

Human Rights Tribunal of Ontario

Between:

Sarah Rogers Applicant

-and-

Holcim (Canada) Inc. Respondent

Interim Decision

Adjudicator: Alan G. Smith Date: May 2, 2011 Citation: 2011 HRTO 867 Indexed as: Rogers v. Holcim (Canada)

Written Submissions By:

Sarah Rogers, Applicant (Self Represented) Holcim (Canada) Inc., Respondent (Larry McNeely, Representative)

INTRODUCTION

1This is an Application filed October 14, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, (the “Code”) as amended, alleging discrimination in employment on the grounds of sex and pregnancy. The respondent filed a Response on January 14, 2011.

2This interim decision deals with a Request to Defer by the respondent by which the Application would be deferred pending the outcome of a reconsideration of an Ontario Ministry of Labour Order made pursuant to the Ontario Employment Standards Act, S.O. 2000.

3The applicant filed a Reply on April 15, 2011, in which she advised the Tribunal that:

The Labour Board claim has been resolved and the company has been found in violation of the Employment Standards Act where they are not allowed to penalize an employee for planning to take a parental leave. The company has filed an appeal.

4The applicant made no other submissions in her Reply with regard to the respondent’s Request to Defer.

5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

6While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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 (Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779).

DECISION

7It is not fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. There is a potential for inconsistent findings in the two proceedings. Inconsistent findings by two different adjudicative bodies may occur because the cases are presented differently or because different statutes or rules apply. It is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues: Golon, supra.

8The Tribunal has generally deferred applications where there is an ongoing Employment Standards Act proceeding the subject matter of which is extremely similar to that of the Application. A review of the nature of the Employment Standards Act complaint filed by the applicant reveals it is virtually identical to the subject matter of the Application.

9While not identical, the remedies that are available to a person under the Employment Standards Act and the Code are quite similar, especially in cases dealing with pregnancy: Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448. Pursuant to section 104(1) of the Employment Standards Act, if an Employment Standards Officer finds that an employer has contravened the pregnancy leave provisions of the Employment Standards Act the Ministry of Labour may order that the employee be compensated for loss or that she be reinstated, or both compensated and reinstated. Compensation can include compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering.

ORDER

10In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the Employment Standards Act proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

11I am not seized of this matter.