Valerio v. Concord Steel Centre Limited, 2012 HRTO 2359

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Valerio

Applicant

-and-

Concord Steel Centre Limited and Marco Belliesario

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: December 18, 2012

Citation: 2012 HRTO 2359

Indexed as: Valerio v. Concord Steel Centre Limited

WRITTEN SUBMISSIONS

Joseph Valerio, Applicant

Guy Hunter, Maureen Bennet Henry, Counsel

Concord Steel Centre Limited and Marco Belliesario, Respondents

Jeff Hopkins, Counsel

Introduction

1This Application was filed on April 26, 2010, and alleged discrimination in employment because of disability. In particular, the applicant alleged that the respondents failed to accommodate the applicant and improperly terminated his employment. The respondents filed a Response and submit that the applicant did not request accommodation and that the termination of employment was for non-discriminatory reasons. A mediation session was scheduled for February 2, 2011 which did not lead to a settlement.

2On May 2, 2011 the applicant filed Statement of Claim with the Superior Court of Justice naming the respondents as defendants. The Statement of Claim alleges that the applicant’s employment was unjustly terminated and alleges that the termination was related to the applicant’s disabilities.

3On September 23, 2011 the applicant filed a Request for Order During Proceedings with the Tribunal, asking the Application be deferred indefinitely because of the civil action. The respondents agreed that the Application should be deferred.

4The Tribunal issued a Case Assessment Direction dated October 4, 2011, seeking submissions from the parties about whether the Application should be dismissed under section 34(11) of the Code which provides:

34(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

5The parties both submitted that the issues in the civil action were different than the issues in the civil action and that the Application should be deferred. In Interim Decision 2012 HRTO 721, the Tribunal deferred further consideration of the Application pending the conclusion of the civil proceeding.

6On August 27, 2012, the applicant filed a Request for Order During Proceedings asking that the Application be re-activated, essentially on the grounds that the civil proceeding is taking too long. The respondents responded to the Request for Order During Proceedings by email dated November 30, 2012, indicating that the respondents consented to the re-activation of the Application.

Conclusions

7As noted in the earlier Interim Decision, the Tribunal may defer consideration of an Application on its own motion or at the request of a party. 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.

8In this case there is an ongoing civil case that has been commenced in the Court. The parties appear to agree that the civil action raises issues that are different than the issues raised in the Application. However, it is apparent that there is a very significant overlap in the issues. In both the Application and the civil action it appears that the central issue will be the reason for the termination of the applicant’s employment. In both the applicant is seeking monetary compensation for lost income following the termination of employment.

9In my view, in these circumstances it is appropriate for the Tribunal to continue to defer consideration of the Application, notwithstanding that the respondent has consented to reactivation of the Application. The only reason provided for the request to reactivate the Application is that the civil action is taking too long. In my view, and in light of the significant overlap in issues and requested remedies, this is not as sufficient reason to reactivate the Application.

ORDER

10The Tribunal will continue to defer further consideration of the Application pending the completion of the civil action.