Andreas Kentros v. Ballantry Homes Limited, 2012 HRTO 782

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andreas Kentros

Applicant

-and-

Ballantry Homes Limited

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: April 18, 2012

Citation: 2012 HRTO 782

Indexed as: Kentros v. Ballantry Homes Limited

WRITTEN SUBMISSIONS

Andreas Kentros, Applicant ) Guy Farrell, Counsel

Ballantry Homes Limited, Respondent ) Mark Stone, Counsel

1This is an Application filed August 23, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that his right to be free of discrimination in employment on the basis of disability was infringed by the respondent, his former employer. The applicant was injured while not at work, and was unable to perform his duties for some period of time. The applicant alleges that the respondent terminated his employment during a medical leave, did not appropriately accommodate his disability, and did not assist him obtaining insurance benefits which he may have been entitled to as an employee.

2The applicant also commenced two civil actions in January 2012, one against an individual who he alleges is responsible in whole or in part for his injuries and another against both the respondent and its benefit insurer related to his entitlement to benefits under an insurance plan. In a Case Assessment Direction dated March 19, 2012, the Tribunal directed that the parties provide their submissions on whether it would be appropriate to defer this Application pursuant to section 45 of the Code pending the resolution of the civil proceedings.

3Section 45 provides as follows:

The Tribunal may defer an application in accordance with the Tribunal rules.

4Rule 14 of the Tribunal’s Rules of Procedure provide as follows:

14.1 The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

14.2 Where the Tribunal intends to defer consideration of an Application under Rule 14.1, it will first give the parties, any identified trade union or occupational or professional organization and any identified affected persons, notice of its intention to consider deferral of the Application and an opportunity to make submissions.

14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.

14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

14.5 The Tribunal may, on its own motion, require a deferred Application to proceed in appropriate circumstances.

5I have received the parties’ submissions. A focus of the parties’ submissions was the relative strengths of their positions on the merits of the Application and whether or not elements of their pleadings amounted to admissions or not. That is not the primary focus of this enquiry; rather, the question is whether having regard to a potential overlap in the factual and legal issues arising in these proceedings it would be fair, just and expeditious to defer the further processing of this Application pending the conclusion of the civil proceedings.

6In the action commenced against the respondent and its insurer, the applicant alleges that the respondent, amongst other things, engaged in behaviour “calculated to prevent the applicant’s timely application for insurance benefits”. As the Application is framed this is a key allegation to be dealt with in this case. In this civil proceeding the applicant also makes assertions about the injuries to his hands and the extent to which his injuries will affect his employability. The issue of the applicant’s functional impairments as it relates to his ability to perform, or not, the essential tasks of his employment will be another key issue in the Application. Similarly the other court action raises issues of the applicant’s functional abilities as related to his employability.

7Deferral of an application ensures that proceedings dealing with the same or similar issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

8Some 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.

9In this case, the most significant factors are the overlap of key factual disputes which are raised in these proceedings as discussed above giving rise to concern with inconsistent results on those key factual issues. In these circumstances the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of the court proceeding.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the civil claims have been concluded.

11I am not seized of this case.