Currie v. Charm Diamond Centres, 2012 HRTO 1920

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadia Currie

Applicant

-and-

Charm Diamond Centers

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: October 9, 2012

Citation: 2012 HRTO 1920

Indexed as: Currie v. Charm Diamond Centres

WRITTEN SUBMISSIONS

Nadia Currie, Applicant

Self-represented

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 sex (pregnancy).

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related application under the Employment Standards Act, 2000, S.O. 2000, c.41 as amended (“ESA claim”).

3On July 16, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it may be appropriate to defer consideration of the Application pending the resolution of the ESA claim. The Tribunal directed the parties to deliver and file any written submissions which they wished to make in respect of the deferral issue within 30 days from July 17, 2012.

4The applicant filed written submissions opposing the deferral. The respondent did not file submissions.

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 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. Some 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 Mounfield v. Cambridge Memorial Hospital 2012 HRTO 1400 (“Mounfield”); Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7The Tribunal has deferred when the facts and issues raised in an on-going ESA claim overlapped with the subject-matter of the human rights application. See for example, Mounfield, supra.

8In the circumstances of this case, I find that deferral is appropriate. The factual circumstances in the ESA claim and the Application are identical and the remedial claims overlap. For example, in her submissions, the applicant indicates that the legal issues to be determined in the Ministry of Labour claim are loss of employment, loss of income, and loss of maternity benefits which also form part of the claim in the human rights Application. 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 loss of the applicant’s employment. If the two matters were to proceed concurrently, there is a real risk that the two proceedings could have inconsistent findings.

9While not identical, the remedies that are available to a person under the ESA and the Code are quite similar, especially in cases dealing with pregnancy: Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448. The applicant indicated that her claim has been assigned to an ESA Officer. An Officer may order reinstatement or compensation for losses or both. Compensation can include compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering. While not identical, the remedies potentially available in the ESA claim in pregnancy cases are similar to the remedies that are available under the Code.

10Given that the legal issues in the Application and the ESA 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 ESA claim.

11The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance and arbitration procedure. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “New Applications”. 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.

12I am not seized.