Neves v. The Abacus Resource Group Inc., 2012 HRTO 2044

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marijana Neves Applicant

-and-

The Abacus Resource Group Inc. and Gregory Stevens Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Decision Date: October 25, 2012 Citation: 2012 HRTO 2044 Indexed as: Neves v. The Abacus Resource Group Inc.

WRITTEN SUBMISSIONS

Marijana Neves, Applicant Mathew Fisher, Counsel

The Abacus Resource Group Inc. and Gregory Stevens, Respondents Patricia Piccolo, Counsel

1The applicant filed this Application on August 20, 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 basis of sex and family status.

2The Application alleges that the applicant was subjected to sexual harassment and discrimination because of her sex and pregnancy. Along with the Application, the applicant provided a copy of her Employment Standards claim wherein she alleges she was constructively terminated because of her pregnancy and her intention to take pregnancy leave.

3On September 6, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”) to the parties indicating that the Tribunal was considering, pursuant to Rule 14 of the Tribunal’s Rules of Procedure, to defer the Application pending conclusion of the Employment Standards claim. The Tribunal directed the parties to file submissions as to why consideration of the Application should or should not be deferred.

4On September 14, 2012 and October 10, 2012, the respondents filed submissions indicating that the Application should be deferred because the outstanding Employment Standards claim is with respect to the same pregnancy-related allegations as raised in this Application. The respondents note that, while the sexual harassment allegations may not be addressed before the Ministry of Labour, there are overlapping legal issues relevant to both the Employment Standards claim and the Application, in particular regarding the issues of constructive dismissal. The respondents further submit that there is a potential for duplicate remedies with respect to lost wages and reinstatement.

5The applicant filed submissions on October 5, 2012 opposing deferral. The applicant submits there are clear differences between the subject matter of the Application, which raises concerns of gender discrimination and harassment and pregnancy discrimination and harassment, and the Employment Standards claim, which deals with the applicant’s statutory entitlements flowing from her pregnancy and parental leave. The applicant submits that deferral for an indeterminate length of time would be highly prejudicial to the applicant who has been without income since the events raised in her Application.

DECISION

6Pursuant 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.

7The 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.”

8While 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.

9Some 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.

10Tribunal 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.

11In the circumstances of this case, I find that deferral is appropriate.

12The factual background for both the Employment Standards claim and the Application are the same. The Employment Standards claim was filed first (August 16, 2012) and there is clear overlap with respect to some of the compensation sought. Having carefully reviewed the Employment Standards claim and the Application, it appears that the applicant’s concerns of discrimination, harassment and reprisal with respect to gender and family status as alleged in the Application intersect with the applicant’s concerns regarding the mistreatment on the basis of her pregnancy as alleged in the Employment Standard’s claim. There is little doubt that the Employment Standards case will be addressing many of the same allegations and issues as raised in this Application, particularly in relation to the circumstances surrounding the alleged constructive termination 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 of fact.

13Given 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.

14The 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).

15I am not seized.