Scruton v. Wabco Freight Car Products, 2011 HRTO 922

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eric Scruton

Applicant

-and-

Wabco Freight Car Products

Respondent

INTERIM DECISION

Adjudicator: Ian R. Mackenzie

Date: May 12, 2011

Citation: 2011 HRTO 922

Indexed as: Scruton v. Wabco Freight Car Products

1The applicant filed an Application alleging discrimination in employment on the basis of age under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 22, 2011. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a complaint process before the Financial Services Commission.

2In the Application, the applicant alleges that he was unilaterally removed from the pension plan of the respondent solely due to his age. He seeks monetary compensation for his removal from the pension plan and a letter of apology from the respondent. In the alternative, he seeks reinstatement to the pension plan plus monetary compensation for any shortfall in his pension.

3On February 23, 2011, the applicant filed a complaint with the Financial Services Commission of Ontario (the “FSCO”), alleging a breach of sections 29 and 31 of the Ontario Pension Benefits Act, R.S.O. 1990, Chapter P-8 (the “OPBA”). In his complaint, the applicant alleges that he was in a “class of employees for whom a pension plan has been established” and was therefore eligible to be a member of the plan (section 31 of the OPBA). Section 33 of the OPBA allows the Superintendent of FSCO to require the administrator of the pension plan to accept the employee as a member of the plan. FSCO can make such an order if he or she is of the opinion that, “on the basis of the nature of the employment or of the terms of employment” the employee is a member of the class of employees covered by the pension plan (subsection 33(2) of the OPBA).

4The applicant states in his Application that he does not want the Application deferred.

5A Notice of Intent to Defer was sent by the Tribunal to the applicant and the respondents on March 28, 2011. The applicant and respondents were advised of their right to make submissions on the deferral within thirty days of the Notice. The applicant did not file any submissions. The respondent made a brief submission that the Application should be deferred because the complaint to the FSCO “would appear to cover matters of substance that might be considered by the Tribunal”.

6In Chopra v. Kratiuk 2009 HRTO 283, the Vice-chair stated as follows:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

7The submissions of the respondent are limited. The applicant has provided no submissions. The applicant has not raised any human rights issues before the FSCO although he is seeking a remedy similar to the requested remedy in his Application and a determination by the FSCO that the applicant is eligible for the pension plan may make the remedies sought in the Application largely moot. Notwithstanding that similar or overlapping remedies may result from these two processes, it appears, based on the limited material before me, that FSCO and the Tribunal are being asked to determine two different issues. FSCO, it appears, is being asked to determine non-Code related statutory entitlements arising under the OPBA, whereas the Tribunal has been asked to determine whether the Applicant has been removed from a pension plan for Code-related reasons. In my view, based on the material before me, this minimizes the possibility that inconsistent decisions on facts or law will arise from the two proceedings. The complaint and the Application were filed within a day of each other. The information available to the Tribunal does not indicate when the complaint before the FSCO is likely to be dealt with. Given the lack of information on the status of the complaint to the FSCO, and my conclusions above, it is not appropriate to defer the Application at this stage.

8I am not seized.