HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Penny Mounfield
Applicant
-and-
Cambridge Memorial Hospital
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Decision Date: July 17, 2012
Indexed as: Mounfield v. Cambridge Memorial Hospital
WRITTEN SUBMISSIONS
Penny Mounfield, Applicant
Ian S. Wright, Counsel
Cambridge Memorial Hospital, Respondent
Seann D. McAleese, Counsel
1This is an Application filed on September 26, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of sex (pregnancy). The applicant alleges that her employment was terminated because of her intention to take maternity leave.
2The respondent filed a Response on November 25, 2011, wherein it requests that the Tribunal defer the Application on the basis that there is an on-going Employment Standards claim before the Ministry of Labour with respect to the same allegations as raised in this Application.
3The applicant filed submissions on June 12, 2012 opposing deferral. The applicant submits there is no indication as to when the Employment Standards claim will conclude and deferral for an indeterminate length of time would be unfair to the applicant. The applicant further submits that the issues to be determined by the Employment Standards officer are different from the human rights concerns as the Employment Standards claim is framed as a pregnancy reprisal case.
Decision
4Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the 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. 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.
5The Tribunal will generally defer an application where the parties are involved in another proceeding based on the facts or issues raised in the application. While deferral is not automatic simply because the parties are engaged in another proceeding, deferral does not require that the other proceeding deal with precisely the same legal issues as raised in the human rights application. See Christianson v. College of Physicians and Surgeons of Ontario, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330 and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.
6Some factors 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.
7Tribunal decisions have deferred applications where there were on-going Ministry of Labour proceedings when the facts and issue raised in the Employment Standards claims overlapped with subject matter of the applications: see for example, Matechuk v. OLG at Thousand Islands, 2009 HRTO 324 and Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448.
8In the circumstances of this case, I find that deferral is appropriate. The factual circumstances in the Employment Standards case and the Application are identical (maternity leave) and the remedial claims overlap. As such, there is little doubt that the Employment Standards claim will be addressing the same allegations and issues as raised in this Application, particularly in relation to the circumstances surrounding the termination of the applicant’s employment. The Employment Standards officer has undertaken an investigation and conducted interviews of the applicant and respondent’s representative. As such, there is the likelihood that there will be a determination of the Employment Standards claim in the near future. If the two matters were to proceed concurrently, there is a real risk that the two proceedings could have inconsistent findings of fact.
9Given that the legal issues in the Application and the Employment Standards claim arise out of the same factual circumstances and the possibility that there may be overlapping remedies, the Tribunal finds in these circumstances that it is appropriate to defer consideration of this Application pending the conclusion of the Employment Standards claim.
10The Tribunal orders the deferral of the Application pending the conclusion of the Employment Standards process. Where 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).
11I am not seized.
Dated at Toronto, this 17th day of July, 2012.
Signed by
Ena Chadha
Vice-chair