Sacco v. John Howard Society of Peel Halton Dufferin, 2012 HRTO 1185

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lynda Sacco

Applicant

-and-

John Howard Society of Peel Halton Dufferin and Michael Clarke

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 15, 2012

Citation: 2012 HRTO 1185

Indexed as: Sacco v. John Howard Society of Peel Halton Dufferin

WRITTEN SUBMISSIONS

John Howard Society of Peel Halton Dufferin and Michael Clarke, Respondents

Kelsey Orth, Counsel

1This Application was filed on January 12, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the grounds of sex and age. In her narrative, the applicant alleges that she was discriminated and reprised against for raising pay equity concerns. Along with the Application, the applicant provided a copy of her Pay Equity Commission complaint dated September 7, 2011.

2On March 12, 2012, the Tribunal issued a Notice of Intent to Defer. The Tribunal invited the parties to file written submissions with respect to the issue of deferral no later than 30 days from the date of the letter. The Tribunal’s letter noted that it may be appropriate to defer consideration of the Application pending the resolution of the Pay Equity Commission proceeding.

3On April 27, 2012, the respondents filed submissions supporting deferral. The respondent submits that two proceedings are remarkably similar in that both deal with the applicant’s allegations that she was treated differently and dismissed because of her gender and pay equity concerns.

4The applicant did not file written submissions in response to the Tribunal’s Notice of Intent to Defer.

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.

6Factors 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.

7There are a number of compelling reasons why applications should be deferred when parties are engaged in other legal proceedings that raise related issues. As noted in various Tribunal decisions, it may be unfair for parties to be required to simultaneously present their cases in multiple proceedings, particularly when the matters overlap, when the same facts or issues are in dispute there is a potential for inconsistent findings, and it is generally preferable for one proceeding to be completed before the other starts. See Klein v. Toronto Zionist Council, 2008 HRTO 189; Tekes v. Markham (Town), 2009 HRTO 1665; and Mahjour v. Joe Singer Shoes, 2010 HRTO 1053.

8The 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 for example, Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280. As recently stated in McFarlane v. Farraway, 2012 HRTO 657, “[w]here the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding.”

9I see no reasons to depart from this approach given the overlapping facts, parties and interests in these proceedings. The Pay Equity Commission complaint was commenced first. The gender equity matters that comprise the substance of the applicant’s pay equity complaint are central to the applicant’s human rights allegations. Further, the remedial issues raised in the Application are directly related to the pay equity case. Accordingly, deferral of the Application may be necessary to avoid concurrent proceedings with decision-makers with the authority to make inconsistent findings of fact and law and potential double recovery.

10Given the significant overlap in the subject matter of this Application and that of the outstanding Pay Equity complaint, I conclude that deferral is the most fair, efficient, and just way of proceeding with this Application.

11The Tribunal orders the deferral of the Application pending the conclusion of the Pay Equity Commission complaint.

12Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

13I am not seized of this matter.