Benjamin v. PTC Accounting & Finance Inc., 2011 HRTO 918

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Orith Benjamin

Applicant

-and-

PTC Accounting & Finance Inc.,

Brenda Kilger and Karen Eyers

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 11, 2011

Citation: 2011 HRTO 918

Indexed as : Benjamin v. PTC Accounting & Finance Inc.

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), dated June 4, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 21, 2008.

2The applicant alleges that she experienced discrimination and harassment in employment because of disability, marital status and family status contrary to s. 5 of the Code, arising out of events that occurred in 2007 and culminated in the termination of her employment in December 2007.

3In addition to filing a complaint with the Commission, the applicant also commenced a civil action for wrongful dismissal and other relief on February 27, 2009. The civil action does not raise any allegation of a violation of the applicant’s rights under the Code, and does not seek any remedy under the Code.

4The Tribunal scheduled mediation in this matter for November 12, 2009. On October 28, 2009, counsel for the respondents wrote to the Tribunal to advise that he and applicant’s counsel agreed that it was impractical to proceed with mediation before the Tribunal at this time, given the outstanding civil action in which there would be compulsory mediation. Accordingly, the parties requested that the mediation scheduled for November 12, 2009 be adjourned. The letter stated that, if the matter did proceed before this Tribunal at some point, each party would be at liberty to take whatever position may be appropriate in the circumstances depending upon the status of the civil action at that time.

5Accordingly, by letter dated November 4, 2009, the Tribunal cancelled the mediation on consent of the parties, and indicated that it would take no further action pending further communication from the parties. The Tribunal further stated that, before it would resume processing this Application, the person requesting processing should file submissions on why this matter should not remain deferred pending the outcome of the civil action.

6On December 1, 2010, having not heard from the parties in over a year, the Tribunal wrote to the parties to ascertain whether the civil action had been concluded, and if not, what its status was.

7By letter dated December 14, 2010, applicant’s then counsel advised that the civil proceeding had not been concluded and that the next step was to schedule a pre-trial.

8Then by letter dated December 27, 2010, the applicant wrote to the Tribunal personally to advise that she wanted to move forward with her Application. It appears from this letter that mediation in the civil action took place on June 25, 2010 and was not successful.

9On January 4, 2011, the Tribunal wrote to the parties asking the applicant to advise whether she was still represented by counsel in this matter and whether she agreed with her counsel’s statement that the civil proceeding had not concluded. The applicant responded on January 11, 2011 to say that she had not been able to reach her counsel regarding the status of the civil action, but repeated that she wanted to move forward with this Application.

10On February 20, 2011, the applicant wrote to the Tribunal to advise that she was no longer represented by counsel in relation to this Application. The applicant repeated once again that she wanted to move forward with her Application. No mention was made of the status of the civil proceeding, or whether her counsel continued to represent her in relation to the civil action.

11Accordingly, on February 25, 2011, the Tribunal wrote again to the parties requesting submissions on whether the Application should be re-activated notwithstanding that the civil action was still ongoing. In particular, the applicant was asked to indicate whether she was still represented by her lawyer in relation to the civil action and whether she still intended to proceed with the civil action.

12On March 30, 2011, counsel for the respondents wrote to indicate that he had received no correspondence from the applicant as required by the Tribunal, and asked that the Tribunal dismiss her Application.

13On April 5, 2011, the applicant wrote to the Tribunal to send documentation that she states had been sent to the Tribunal and the respondents. This documentation includes a letter from the applicant dated March 15, 2011 which is addressed to the Tribunal and copied to respondents’ counsel. While the applicant states that the March 15, 2011 letter was sent out by her, the Tribunal and the respondents’ counsel have no record of having received this letter, prior to receiving it with the package of material sent on April 5, 2011.

14In this letter, the applicant sets out her reasons for why she wishes to re-activate this Application. She states that she initiated her complaint to the Commission first, and that she feels that the human rights system is the best place to rectify the wrong that she alleges she suffered. She also expresses concern about the costs entailed in being required first to complete the civil action.

15Counsel for the respondents replied by letter dated April 7, 2011, noting that the applicant had failed to respond to the Tribunal’s direction to advise whether she was still represented by counsel in the civil action and whether she still intends to proceed with the civil action. Given the applicant’s non-compliance with the Tribunal’s direction, the respondents once again ask that the Application be dismissed. The respondents express a further concern about the applicant’s reference in her March 15, 2011 letter to what had occurred at mediation in the civil proceeding, which they assert is in violation of the Mediation Agreement. I too am concerned about the applicant’s statements about the mediation that occurred in relation to the civil action and have disregarded the applicant’s comments in this regard. The applicant is reminded that discussions at mediation are confidential, and are not to be disclosed.

16The basic question before me is whether this Application should remain deferred pending the conclusion of the civil action. In this regard, I note that the initial request on consent was only for deferral of mediation, given that the parties would be required to proceed with mandatory mediation in the civil proceeding and any settlement likely would resolve all outstanding issues. It was contemplated by the parties, as set out in the letter from respondents’ counsel of October 28, 2009, that this Application might proceed at a later time and that the parties would be free to take whatever position they deemed fit based on the status of the civil proceeding.

17While the initial deferral of this Application was on consent, it is apparent that the applicant no longer consents to deferral and wishes her Application to proceed. Having reviewed the Statement of Claim, which is the only pleading from the civil action which has been filed with the Tribunal, it appears that there is little overlap in relation to the factual issues raised by this Application.

18The Application alleges that the applicant experienced discrimination and harassment because of disability, family status and marital status following her return to work from sick leave in March 2007, that these grounds were a factor in the assignment of work to her and how she was treated at work, and that ultimately these grounds were a factor in the decision to terminate her employment in December 2007.

19In contrast, the civil action seeks reasonable notice damages for wrongful dismissal, damages for failure to pay commissions earned by the applicant, and relief from a restrictive covenant in her employment contract.

20I appreciate that there may be some overlap in relation to the remedies claimed by the applicant in both proceedings, but that is a matter that courts and administrative tribunals routinely address. If this Application were to proceed first and if damages for lost wages or commissions were to be awarded to the applicant, then such award simply would be brought to the court’s attention in order to prevent any double recovery, and vice versa if the civil action were to proceed first. This does not, in my view, constitute a sufficient reason to maintain the deferral of this Application.

21One of these two proceedings needs to go first. The civil action, despite having been commenced in February 2009, appears to have proceeded to mediation in June 2010 and there is nothing before this Tribunal to indicate that any further steps have been taken. The last information provided to this Tribunal about the status of the civil action is that the next step was to schedule a pre-trial, after which the matter would need to be set down for trial and a trial date set. The Tribunal has received no information that a pre-trial date in the civil action actually has been scheduled at this point, some five months after the Tribunal was advised that this was the next step in the civil proceeding.

22In my view, there is no sufficient basis to justify the continued deferral of this Application, and I direct that the Application proceed with the scheduling of the hearing date and the setting of deadlines for compliance with the parties’ pre-hearing obligations. The Tribunal hereby offers the following dates for the parties for the hearing: September 13, 19, 21 or 28, 2011. Within 10 days of the date of this Decision, the parties are to advise the Tribunal as to all of their availability for the proposed dates, failing which the Tribunal will proceed to schedule the hearing without further consultation.

23I am aware that the respondents have requested that this Application be dismissed due to the applicant’s failure to adhere to the Tribunal’s directions. In my view, this is not an appropriate case in which to do so, taking into account that the applicant is no longer represented by counsel in this proceeding.

24For all of these reasons, the Application is hereby re-activated.