HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph King
Applicant
-and-
Chiva Auto Group Inc. o/a Direct Nissan and Billy Innes
Respondents
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: King v. Chiva Auto Group Inc.
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related employment standards proceeding.
2The respondents ask that this Application be deferred because of an ongoing Employment Standards Act, 2000 (“ESA claim”) proceeding. The respondents take the position that the applicant alleges reprisal in his ESA claim, and this issue should be determined by the Ministry of Labour.
3The applicant responded to the request to defer. The applicant states that the ESA claim is not related to his having been threatened, intimidated and discriminated against in his workplace.
DECISION
4Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the 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. 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.
5In Irwin v. HMV Canada, 2013 HRTO 151 at paras. 6 to 8, the Tribunal stated:
The Tribunal will 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. The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts that parallel the Application: see Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280.
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 for example, 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.
Some 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.
6In this case, the applicant’s ESA claim was filed on March 7, 2013, just prior to his filing this Application. The ESA claim deals with the applicant’s allegation that he was fired because he told his employer he was going to speak to the Ministry of Labour. He seeks a remedy for reprisal, both in the ESA claim and in this Application.
7As noted in Irwin, above, the Tribunal has deferred applications involving similar facts and issues raised in the ongoing ESA claims: see for example, Matechuk v. OLG at Thousand Islands, 2009 HRTO 324, 2009 HRTO 324; Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448, 2010 HRTO 448 and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, above.
8Neither the applicant nor the respondents filed a complete copy of the ESA claim with the Tribunal, and the Tribunal does not know the facts relied on to support a reprisal in the ESA claim.
9Based on the lack of information before the Tribunal with respect to whether there is a chance of inconsistent findings of fact in the two proceedings, I find there is no basis for a deferral of this Application.
10I find that this matter should not be deferred. Both parties have indicated an interest in mediation. Therefore, this matter will be referred to the Registrar to schedule a date for mediation.
11I am not seized.
Dated at Toronto, this 7th day of June, 2013.
”signed by”
Dawn J. Kershaw
Vice-chair