Raluca Schen v. International Financial Data Services - Canada, 2013 HRTO 1458

Human Rights Tribunal of Ontario

B E T W E E N:

Raluca Schen

Applicant

-and-

International Financial Data Services – Canada

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: August 27, 2013

Citation: 2013 HRTO 1458

Indexed as: Schen v. International Financial Data Services - Canada

WRITTEN SUBMISSIONS

Raluca Schen, Applicant

Self-represented

International Financial Data Services - Canada, Respondent

Peigi Ross, Counsel

1This is an Application filed on June 14, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of pregnancy and family status. The applicant has also filed a complaint under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”) on January 3, 2013 based upon the same fact situation as that raised in her Application.

2By letter dated July 24, 2013, the Tribunal sent the applicant a Notice of Intent to Defer (“NOID”) advising that it may be appropriate to defer the consideration of the Application pending the resolution of the other proceeding (the “ESA complaint”). The Tribunal requested the parties to provide submissions, by August 24, 2013, as to why the Application should, or should not be, deferred. The Tribunal stated that it did not require the respondent to file a Response at this time.

3The applicant filed submissions dated July 30, 2013. She requests that the Tribunal not defer her Application pending completion of the ESA proceedings. She submits that she was told by both the Ministry of Labour (“Labour”), to whom her ESA complaint was filed, and the Tribunal that she was permitted to file an application with the Tribunal while having an ongoing claim with Labour and that having two claims proceed simultaneously should not affect or interfere with the claim in the other venue. Further, she submits that she has been advised by Labour that it has a backlog in their system of approximately six months and she is still awaiting review of her ESA claim. The applicant submits that she has been involved in her matter with the respondent for a considerable amount of time and would like her Application to proceed so that she can comfortably recollect the issues before her memories fade with the passage of time.

4The respondent filed submissions dated August 8, 2013 in which it takes the position that the Application should be deferred pending the ESA proceeding. It submits that the facts and evidence at issue in the ESA complaint are the same or substantially the same as those raised in the Application and that the ESA complaint was filed before the Application. There is a serious concern, the respondent submits, that there may be an inconsistent decision on the facts. Further, it notes that a meeting with an Employment Standards Officer has been scheduled for September 5, 2013. The fact that the applicant was advised that she could file complaints in both venues, the respondent submits, is not a reason not to defer the Application.

analysis

5Pursuant 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 the proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

6I have reviewed the ESA complaint that the applicant has filed and have determined that it is appropriate to defer the Application until the completion of the ESA process. The Application and the ESA complaint are based upon the same fact situation and there is an overlap of some of the same issues. The Tribunal has held in other situations that this is an appropriate basis for deferral of an application. See Matechuk v. OLG at Thousand Islands, 2009 HRTO 324; Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448; and Burman v. Adecco Employment Services Limited, 2013 HRTO 1125.

7This is particularly so in this case given that the ESA complaint was filed more than five months before the Application was filed with the Tribunal and there is an Employment Standards Officer’s meeting scheduled for September 5, 2013.

8If the applicant believes, on conclusion of the ESA proceeding, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure. In the event that the applicant seeks to have her Application resurrected, she must also provide information about the results of the ESA complaint, and any decision that was issued by the Employment Standards Officer.

8I am not seized with this matter.