Donald Osmun v. ING Engineering Inc. and Ian Glenn, 2012 HRTO 1663

Human Rights Tribunal of Ontario

Between: Donald Osmun, Applicant -and- ING Engineering Inc. and Ian Glenn, Respondents

Interim Decision

Adjudicator: Mark Hart Date: September 4, 2012 Citation: 2012 HRTO 1663 Indexed as: Osmun v. ING Engineering Inc.

1This is an Application filed 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 because of age and family status.

2The purpose of this Interim Decision is to address the respondents’ request for deferral of the hearing in this matter, pending the conclusion of a proceeding before the Ontario Labour Relations Board (“OLRB”) under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

3The Application in this matter alleges discrimination in employment because of family status on the basis that the applicant was denied a request for parental leave and was terminated shortly thereafter. This same allegation is raised by the applicant as a violation of his rights under the ESA.

4The hearing before the Human Rights Tribunal is currently scheduled to proceed on September 20 and 21, 2012. The hearing before the OLRB commenced on June 27, 2012, and is scheduled to continue on a date to be determined. The OLRB hearing originally was scheduled to continue on September 11, 2012; however, the respondents failed to receive proper notice of that hearing date and it has been adjourned by the Board.

5The respondents filed a Request for Order dated August 17, 2012 seeking deferral of the hearing before this Tribunal, pending the conclusion of the matter before the OLRB and a decision by the OLRB being rendered. The respondents primarily rely upon the overlapping factual and legal issues in the two proceedings, both of which raise the central issue of whether the applicant’s employment was terminated because of his request for parental leave. The respondents seek deferral of the Application before this Tribunal on the basis that the OLRB hearing has already commenced.

6The respondents also rely upon a procedural problem, which is that the OLRB hearing concluded on June 27, 2012, with one of the corporate respondent’s representatives under cross-examination. Under the rules of evidence and the Rules of Professional Conduct, counsel for the respondents is not entitled to communicate with a witness who is under cross-examination. The respondents submit that this procedural difficulty prevents them from being properly able to prepare for the human rights hearing.

7The applicant filed submissions in response to the respondents’ request, by e-mail correspondence dated August 21, 2012. The applicant opposes the respondents’ request for deferral for a number of reasons. First, he states that the OLRB hearing is scheduled to proceed and is expected to conclude on September 11, 2012. While I understand that the OLRB did schedule the OLRB hearing to continue on September 11, 2012, that hearing day is now adjourned and the matter re-listed for scheduling. So there is little doubt that the OLRB hearing will not be concluded prior to the scheduled hearing days before this Tribunal. Further, even if the OLRB hearing were to be concluded prior to September 20, 2012, the factual and legal issue regarding the OLRB’s determination of the applicant’s claim would not be resolved until the OLRB actually issued its decision in the matter, which very likely would be at some later point in time.

8The applicant further takes the position that the two matters are equally advanced, with the only difference being that there has been one day of hearing before the OLRB. In my view, given the overlapping issues between the two proceedings, it is significant that the OLRB has actually commenced its hearing, whereas the hearing before this Tribunal has not yet started.

9The applicant next states that the respondents had made a deferral request previously, but had withdrawn it. This deferral request had been made while the applicant’s ESA claim was proceeding before the Employment Standards Officer, and was withdrawn after the Officer’s decision was released and prior to the applicant’s appeal to the OLRB. The fact that the respondents withdrew their request for deferral following the release of the Officer’s decision is not a bar to the respondents now seeking deferral in the context of the OLRB hearing.

10The applicant submits that any potential problem regarding overlapping damages would only apply if he were successful in both matters, and that any such issue could be addressed following the conclusion of the two hearings. While there is no doubt that there are mechanisms available to address overlapping damages, this is not the only issue that arises where two proceedings raise the same legal and factual issues. A more significant issue, as raised by the respondents, is the potential for conflicting factual findings.

11There is no doubt that one of these two proceedings needs to go first. But that issue already has been addressed, as the OLRB hearing actually commenced last June. In these circumstances, there are concerns about judicial consistency and economy and not having two different tribunals hearing evidence and arguments about essentially the same issue. In my view, it makes little sense for this Tribunal to hear the same witnesses who appeared before the OLRB give the same evidence as given before the OLRB in order for this Tribunal to decide essentially the same issue. In my view, it is preferable to allow the OLRB hearing to proceed to its conclusion, including the issuance of a final decision by the OLRB, and for this Tribunal and the parties then to assess the impact of the factual and legal determinations made by the OLRB in the context of the proceeding before this Tribunal, including the potential application of s. 45.1 of the Code.

12I am aware that the applicant also alleges age discrimination in the proceeding before this Tribunal, and that this allegation will not be addressed before the OLRB. However, in my view, it is not practical to extricate the age allegations from the applicant’s family status allegations and proceed with them separately while the OLRB proceeding is ongoing. In all of the circumstances, in my view, it makes most sense to defer the proceeding before this Tribunal in its entirety.

ORDER

13The hearing before this Tribunal currently scheduled for September 20 and 21, 2012, is hereby cancelled, and this matter is deferred pending the conclusion of the ongoing hearing before the Ontario Labour Relations Board, including the issuance of the Board’s final decision. If the applicant wishes to proceed with his Application before this Tribunal following the conclusion of the OLRB proceeding, he is required to serve and file a Request for Order during Proceedings seeking reactivation of his Application no later than 60 days following the conclusion of the OLRB proceeding and must include a copy of the order or decision in the OLRB proceeding: see Rules 14.3 and 14.4.