Bell v. Desjardins General Insurance Group, 2013 HRTO 1267

Human Rights Tribunal of Ontario

B E T W E E N:

Colin Bell

Applicant

-and-

Desjardins General Insurance Group

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 22, 2013

Citation: 2013 HRTO 1267

Indexed as: Bell v. Desjardins General Insurance Group

WRITTEN SUBMISSIONS

Desjardins General Insurance Group, ) Marie-Claire Albanese,

Respondent ) Counsel

Reasons for Decision

1The purpose of this Interim Decision is to decide whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a civil proceeding.

2In 2002, the applicant commenced employment with the respondent. On May 22, 2012, the respondent terminated the applicant’s employment.

3On September 4, 2012, the applicant filed a Statement of Claim with the Ontario Superior Court of Justice (the “Superior Court”), which claimed monetary damages for breach of the employment contract and wrongful termination of employment. The civil proceeding is ongoing.

4On January 9, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his disability. Specifically, he alleged that the respondent discouraged him from applying for a job, denied him the job, and terminated his employment. As a remedy, he requested, among other things, reinstatement to a job with the respondent, and monetary compensation for lost wages since the termination and pain and suffering.

5In his Application, the applicant did not request that the Tribunal defer his Application until the civil proceeding is completed.

6On March 25, 2013, the Tribunal’s Registrar sent the parties a letter, which requested written submissions on the issue of deferral. The respondent filed submissions, but the applicant did not, and the time for doing so has now passed.

7Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that 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. 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.

8In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some 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 its submissions, the respondent stated that Tribunal should defer consideration of the Application because the nature of the claims in the two proceedings is largely overlapping, if not identical.

10In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. Although the issues in the two proceedings are not identical, there is some overlap, particularly with respect to the termination of the applicant’s employment, which means that there is a potential for duplication of evidence and inconsistent findings of fact and law. Furthermore, the applicant filed a Statement of Claim with the Superior Court first, and the proceeding before the Court is at a more advanced stage than the proceeding before this Tribunal.

11Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the civil proceeding before the Superior Court and any related appeals.

12Where 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).

13I am not seized of this matter.