Bhogal v. Banana Republic, 2012 HRTO 3

Human Rights Tribunal of Ontario

B E T W E E N:

Harjeet Bhogal Applicant

-and-

Banana Republic, Gap Inc. Respondent

INTERIM decision

Adjudicator: Ena Chadha Date: January 3, 2012 Citation: 2012 HRTO 3 Indexed as: Bhogal v. Banana Republic

1The applicant filed this Application on July 5, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race and ethnic origin.

2The applicant alleges that the respondent discriminated against her by terminating her employment on May 12, 2011 after she complained about her supervisor’s inappropriate racialized comments. In her Application, the applicant noted that a claim with the Ministry of Labour pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) was proceeding regarding the subject matter of her Application. The applicant provided a copy of the ESA claim, dated May 24, 2011.

3On September 22, 2011, 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, deferring the Application pending conclusion of the Ministry of Labour ESA claim. The Tribunal directed the parties to file submissions as to why consideration of the Application should or should not be deferred.

4On November 4, 2011, the respondent filed submissions supporting deferral. The respondent denies the applicant’s allegations and alleges the applicant was dismissed for cause due to breaches in time recording policies. The respondent submits that the applicant’s ESA claim is currently being investigated and that there is substantial overlap between the ESA claim and this Application.

5On November 11, 2011, the applicant emailed a brief note to the Tribunal indicating that she opposed deferral because it would only assist the other side. The applicant’s email queried “What should I do in this case?”. The applicant did not copy her email to the respondent as required by the Rule 1.12 of the Tribunal’s Rules of Procedure.

6On November 16, 2011, the Tribunal emailed the applicant and explained the process by which she could request an extension of time if she was seeking additional time to file her submissions.

7The applicant neither responded to the Tribunal’s November 16th email nor filed submissions in response to the Tribunal’s Notice. As such, the timeline for filing submissions has elapsed.

LEGAL PRINCIPLES

8Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal has the discretion to 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.

9The 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. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330 and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.

10Some 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.

11The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

ANALYSIS

12Tribunal decisions have deferred applications where there were ongoing Ministry of Labour proceedings when the facts and issue raised in the ESA 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.

13In Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, supra, the Tribunal deferred the application notwithstanding the fact there was limited overlap between the ESA claim and the application with respect to the two cited Code-grounds. The Tribunal held the fact that both proceedings would be considering the issue of reprisal was a sufficient basis to defer in order to ensure that there were no concurrent proceedings that could lead to inconsistent decisions on facts or law regarding reprisal.

14The applicant’s ESA claim was filed on May 24, 2011, prior to her filing this Application. The ESA claim deals with the applicant’s allegations that her dismissal was related to her human rights concerns and seeks termination and severance pay, as well as other compensation. A review of the applicant’s ESA claim reveals that there is significant similarity between the Application narrative and the ESA claim. Based on the information provided by the respondent, it appears the ESA process is on-going and that an investigation report is pending.

15There is little doubt that the ESA claim will be addressing some of the same allegations as raised in this Application, particularly in relation to the circumstances surrounding the termination of the applicant’s employment. In light of the fact that the ESA claim was commenced first and is currently being investigated, there is the likelihood that there will be a determination of the ESA claim in the near future. Given 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 proceeding.

ORDER

16The Tribunal orders the deferral of the Application pending the conclusion of the ESA 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).

17I am not seized of this matter.