HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Karen Roycroft
Applicant
-and-
Premier Salons Ltd. and Brian Luborsky
Respondents
interim decision
Adjudicator: Ena Chadha
Indexed as: Roycroft v. Premier Salons Ltd.
WRITTEN SUBMISSIONS
Karen Roycroft, Applicant ) Voula Michaelidis, Counsel
Premier Salons Ltd. and Brian Luborsky, ) Mitchell Rose, Counsel Respondents )
1The applicant filed this Application on November 18, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of disability. The applicant alleges that the respondent, her employer, refused to accommodate her disability-related needs and discriminated, harassed and reprised against her for taking medical leaves.
2The respondent filed a Response on April 5, 2012 denying the allegations. The respondent indicates that it sought to accommodate any alleged disability; however, the applicant never provided particulars of her accommodation needs.
3In its Response, the respondent requests that the Tribunal defer the Application on the basis that the applicant has launched a civil action in the Superior Court of Justice against Liberty Life Insurance Company (“insurance company”) with respect to the denial of her long term disability claim. The respondent provided a copy of the applicant’s Statement of Claim filed on March 13, 2011 against the insurance company.
4On April 26, 2012, the applicant filed a Reply and submissions opposing the respondent’s request to defer. The applicant submits that the civil suit is only against her disability insurer and the respondent is not a party to that litigation. The applicant further submits that the civil action does not deal with her human rights concerns.
DEFERRAL
5The 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.
6The Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to the facts or issues raised in the application. See Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280. However, deferral is not automatically indicated simply because there are other legal proceedings involving some of the parties. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
7Factors that have been identified as 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 types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
8I have reviewed the documentation and submissions provided by the parties. Based on these materials, I find the overlap between this Application and the applicant’s lawsuit against the insurance company is minimal. The responding party to this Application is entirely different than the defendant in the civil matter. While the factual background giving rise to the applicant’s alleged disability may be relevant to both proceedings, there is little duplication of the allegations and no alleged violation of the Code in the civil claim. The legal issues regarding long term disability eligibility which are in dispute in the civil matter are clearly distinct from the legal issues raised in human rights process, which focus on allegations of discrimination, harassment, failure to accommodate and reprisal by the respondent employer.
9In my view, there are insufficient grounds to justify deferral. The civil action appears to be in the early stages and timeframe for conclusion is undetermined. This militates against deferral. Although the claims may possibly move concurrently, there is little relationship or overlap of legal issues in the two proceedings. I appreciate the respondent’s concern that the outcome of the civil action may have some bearing on the issue of income compensation; however, I find that the Tribunal can address any potential for double recovery if and when there is a damage assessment. As such, I am of the opinion that a deferral is not appropriate in this case.
10Accordingly, the respondent’s request to defer is denied.
11Within 7 days of the date of this Interim Decision, the respondent is directed to write to the Tribunal, copied to the applicant, confirming whether or not it is amenable to participating in mediation.
12I am not seized of this matter.
Dated at Toronto, this 18th day of May, 2012.
“Signed by”
Ena Chadha
Vice-chair