Human Rights Tribunal of Ontario
BETWEEN:
Terrence Bradley Applicant
-and-
CEVA Logistics Canada, ULC Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson Date: March 8, 2012 Citation: 2012 HRTO 496 Indexed as: Bradley v. CEVA Logistics Canada, ULC
1This is an Application filed April 19, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), alleging discrimination on the basis of age in employment.
2The respondent filed a Response to the Application dated June 16, 2011. In its Response, the respondent requested that the Application be dismissed on the basis that claims based on the same facts have been filed in civil court, and that the issues in dispute in the Application are within exclusive federal jurisdiction and the applicant has filed a complaint with the Canadian Human Rights Commission (the "CHRC"). The respondent also requests, in the alternative, that the Application be deferred or stayed pending completion of, or determinations in, proceedings before the CHRC and the civil proceedings. Lastly, the respondent submits that the Application ought to be dismissed without a hearing as it fails to set out and plead a prima facie case.
3On July 26, 2011, the applicant filed a Reply and a Response to a Request for an Order, opposing the respondent's requests for dismissal and deferral. In his Reply, the applicant states, in part, that it is his position that the Application falls within provincial jurisdiction, but he also filed a complaint with the CHRC because the respondent takes the position that it is federally-regulated. In his Response, the applicant also explains that the CHRC previously requested submissions from the parties on the jurisdictional issue and they are waiting to hear back from the CHRC. The applicant requests that the Tribunal await a determination from the CHRC on the jurisdictional issue as to whether the respondent falls within the definition of a federally-regulated employer, or if it is provincially-regulated and subject to the Code.
4By letter dated August 29, 2011, the Tribunal asked the parties to advise the Tribunal when the CHRC rendered its decision on jurisdiction, and by letter dated January 23, 2012, the Tribunal requested an update from the applicant. By letter dated January 25, 2012, the applicant confirmed that the CRHC had not rendered its decision on jurisdiction.
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 seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, the Tribunal must also 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.
6If the Tribunal were not to defer consideration of this Application, then the first issue that the Tribunal may have to determine would be whether the applicant's human rights claim falls within provincial jurisdiction and is properly within the Tribunal's jurisdiction. This is precisely the issue which is currently being determined by the CHRC. Thus, proceeding with the Application could lead to inconsistent decisions on the jurisdictional issue. The primary purpose of deferring an Application is to avoid such potential inconsistency. See Bova v. Akwesasne Mohawk Police Services, 2011 HRTO 1722, and Fountain v. Trinity Communication Services, 2010 HRTO 2300.
7In all of the circumstances, I find that deferring the Application pending the CHRC's determination with respect to jurisdiction is appropriate.
8The parties' attention is drawn to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure which address how the Application may be reactivated, following determination by the CHRC with respect to whether the applicant's human rights claim falls within federal jurisdiction.
9I am not seized.
Dated at Toronto, this 8th day of March, 2012.
"Signed by"
___________________________________
Brian Eyolfson
Vice-chair