Hui Li v. Visioneering Corp., 2012 HRTO 957

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hui Li

Applicant

-and-

Visioneering Corp.

Respondent

interiM DECISION

Adjudicator: Naomi Overend

Date: May 11, 2012

Citation: 2012 HRTO 957

Indexed as: Li v. Visioneering Corp.

wRITTEN SUBMISSIONS

Hui Li, Applicant ) Avvy Yao-Yao Go, Counsel

Visioneering Corp., Respondent ) Elizabeth Forster, Counsel

1This Interim Decision concerns whether the Tribunal should defer an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”). The applicant filed her Application on January 10, 2012 alleging discrimination in employment on the ground of sex (pregnancy). The applicant alleges that her employment was terminated on December 5, 2011, shortly after she notified her supervisor with the respondent that she was pregnant.

2The applicant advised that she filed a claim under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the “ESA claim”) based on the facts in her Application. A copy of the ESA claim, dated January 6, 2012, is attached to her Application. The factual allegations in it are identical, although the ESA Claim is against the applicant’s employment agency, whereas the Application is against the company with whom she was placed.

3The Tribunal sent a Notice of Intent to Defer (“NOID”) on January 24, 2012. Both the applicant and the respondent filed written submissions in response to that Notice. A copy of the Application was subsequently served on the employment agency as an affected party, but it has not made a Request to Intervene and the time for doing so has now passed.

DECISION AND ANALYSIS

4The Tribunal may defer consideration of an application on such terms as it may determine (Rule 14.1 of the Rules of Procedure). Deferral of an application ensures that legal processes dealing with the same issues do not run concurrently. It is not automatically invoked simply because the parties are involved in other legal processes, but is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case.

5Some 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 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.

6In the circumstances of this case, I find that deferral is appropriate. While there are some differences in the nature of the ESA claim and the Application – most notably the fact that the applicant names her employment agency, Bestmatch Employment Consulting Ltd., in her ESA claim and her placement employer as the respondent in her Application – the factual allegations are identical. If the two matters were to proceed concurrently, there is a real risk that the two proceedings could have inconsistent findings of fact.

7The applicant argues that as both matters are in their early stages, it is premature to defer the Application. Counsel for the applicant notes that in the experience of the clinic for which she works, Employment Standards Officers usually issues orders within three to six months of receipt of ESA claims, and that this will unnecessarily prolong the processing of the Application under the Code.

8It is the applicant’s view that any decision on deferral can and should be made, after the respondent has filed its Response and the matter is ready to be set down for a hearing. However, the Tribunal has adopted the practise of issuing Notices of Intent to Defer prior to respondents filing their responses for the very reason of relieving parties from the unnecessary burden of filing a complete response in a matter that may be resolved, in whole or in part, in the other proceeding, or changed by the results of that proceeding.

9Consequently, the Application will be deferred pending the outcome of the applicant’s ESA claim.

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 applicant’s claim under the ESA has been concluded.

11I am not seized of this matter.