Gonzalez v. IBM Canada Ltd., 2012 HRTO 2105

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Gonzalez

Applicant

-and-

IBM Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: November 6, 2012

Citation: 2012 HRTO 2105

Indexed as: Gonzalez v. IBM Canada Ltd.

1This Application was filed on August 14, 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 on the grounds of sex (pregnancy). The Application alleges discriminatory changes in work conditions and events surrounding the applicant’s pregnancy leave.

2The applicant provided a copy of her Employment Standards claim with the Ministry of Labour regarding the applicant’s concerns of pregnancy-related reprisal. The applicant claims termination and severance pay arising out of pregnancy-leave reprisal.

3On September 7, 2012, the Tribunal issued a Notice of Intent to Defer (“NOID”) on the basis that it may be appropriate for the Tribunal to defer the Application pending the conclusion of the Employment Standards process. The Tribunal invited the parties to file submissions within 30 days of the date of the NOID.

4Neither the applicant nor the respondent filed submissions with respect to whether or not the Application should be deferred pending the completion of the Employment Standards process.

DEFERRAL

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.

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.

8The Employment Standards claim is dated August 13, 2012. There is significant overlap between the Employment Standards claim and this Application. The applicant’s narrative is virtually identical to the allegations set out in the Employment Standards claim. Both matters seek compensatory damages for mental distress, loss of benefits, lost wages and reinstatement.

9Given that the legal issues in this Application and the Employment Standards claim arise out of the same factual circumstances surrounding the applicant’s pregnancy leave and the strong possibility of overlapping remedies, the Tribunal finds in these circumstances that it is appropriate to defer consideration of the Application. As such, the most fair, just and expeditious approach is to defer this Application pending the completion of the Employment Standards process, which was commenced prior to the filing of this Application.

ORDER

10The Application is deferred until the completion of the Employment Standards process.

11Where 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).

12I am not seized