Denise Reid v. Kelly Services (Canada), Ltd., 2012 HRTO 1992

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denise Reid

Applicant

-and-

Kelly Services (Canada), Ltd.

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: October 19, 2012

Citation: 2012 HRTO 1992

Indexed as: Reid v. Kelly Services (Canada), Ltd.

WRITTEN SUBMISSIONS

Denise Reid, Applicant

Marvin Gorodensky, Counsel

Kelly Services (Canada), Ltd., Respondent

Kathryn Bird, Counsel

Introduction

1This is an Application filed on July 13, 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 with respect to employment because of sex and family status. Attached to the Application was a Statement of Claim between the parties that the applicant commenced pertaining to the termination of her employment (“the civil action”).

2On August 21, 2012, the Tribunal issued a Notice of Intent to Defer (“the Notice”) stating that it may be appropriate to defer the consideration of the Application pending the resolution of the civil action. The Tribunal stated that the respondent was not required, at this time, to file a Response and provided an opportunity for the parties to provide submissions with respect to the deferral issue. Both parties provided submissions in response to the Notice.

3The applicant requests that her Application not be deferred. She submits that the civil action does not deal with the subject matter of the Application and while there is the potential for an overlap in damages, this can be addressed by the Tribunal in its assessment of damages.

4The respondent requests that the Application be deferred. It submits that both the Application and the civil claim are seeking damages for the allegedly wrongful termination of the applicant’s employment such that the factual determinations required for the disposition of both proceedings is substantially similar. Further, both proceedings would result in duplicative adjudicative proceedings, requiring the same evidence, upon which determinations on similar factual issues would occur concurrently.

analysis

5Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

6Deferral 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. Some of the factors that may be 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 type 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.

7I agree with the applicant that there may be an overlap in potential remedies that are awarded in the civil action and in the Application in the event that the Application is upheld. It seems to me that the issue of monetary remedies would need to be deferred in the Tribunal proceedings in any event if the Tribunal proceeding concluded before the civil action.

8The civil action is at a more advanced stage than the Application is in the Tribunal’s proceedings. The respondent filed a Statement of Defence to the civil action before the Tribunal had received the Application. This is a factor upon which it is preferable to defer the Application pending the conclusion of the civil action.

9However, more importantly, I agree with the respondent that both the Tribunal proceeding and the civil action both pertain to the issue of the applicant’s termination and upon which both the Court and the Tribunal will have to make findings. While it appears that the civil action is essentially about the common law notice period to which the applicant is entitled, and does not overtly allege that the applicant’s termination was discriminatory, the Statement of Claim seeks general damages for both breach of contract and wrongful dismissal, as well as “general damages in respect of the manner of termination”. The inclusion of these heads of damages, particularly the latter head of damages, seems to suggest that the applicant is seeking something more in the civil action than a common law notice period. According to the Application, the applicant alleges that her termination was discriminatory because she took two maternity leaves in the span of two years and was demoted upon her return to work. In both proceedings, the adjudicator will need to make findings with respect to the applicant’s termination.

10In these circumstances, the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of the civil action.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which the Application may be brought back on after the civil action has concluded.