HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicole Irwin
Applicant
-and-
HMV Canada
Respondent
INTERIM decision
Adjudicator: Ena Chadha
Indexed as: Irwin v. HMV Canada
WRITTEN SUBMISSIONS
Nicole Irwin, Applicant
Self-represented
1The applicant filed this Application on October 9, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability and family status.
2The applicant alleges that the respondent discriminatorily terminated her employment on the basis of that she requested time off for a medical reason and for her family. In her Application, the applicant noted that a claim with the Ministry of Labour pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) was proceeding regarding the subject matter of her Application. The applicant provided a copy of the ESA claim, dated October 5, 2012.
3On December 11, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”) to the parties indicating that the Tribunal was considering, pursuant to Rule 14 of the Tribunal’s Rules of Procedure, deferring the Application pending conclusion of the Ministry of Labour ESA claim. The Tribunal invited the parties to file submissions as to why consideration of the Application should or should not be deferred.
4The applicant filed submissions on December 13, 2012 opposing deferral. The applicant submits that there is backlog in claims proceedings before the Labour Board and that the ESA claim will only deal with the issue of reprisal and not the discriminatory dismissal. The applicant asserts that she should have not be required to wait for her claim to go through before receiving justice for her human rights. The applicant submits that she is experiencing economic stress as a result of the unfair termination and this has negatively impacted her health.
DECISION
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 proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
6The 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.
7While 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.
8Some 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.
9The applicant’s ESA claim was filed on October 5, 2012, prior to her filing this Application. The ESA claim deals with the applicant’s allegations that her dismissal was related to her human rights concerns and seeks redress for reprisal. A review of the applicant’s ESA forms reveals that there is significant similarity between the Application narrative and the ESA claim.
10Tribunal decisions have deferred applications where there were on-going Ministry of Labour proceedings when the facts and issue raised in the ESA claims overlapped with subject matter of the applications: see for example, Matechuk v. OLG at Thousand Islands, 2009 HRTO 324; Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448 and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, supra.
11There is little doubt that the ESA claim will be addressing the same facts and allegations as raised in this Application, particularly in relation to the circumstances surrounding the termination of the applicant’s employment. In light of the fact that the ESA claim was commenced first and remains outstanding and the factual basis for both are identical, I find it appropriate to defer this Application.
12I appreciate that the applicant’s economic and personal circumstances may be difficult and that she is concerned about delays in the progress of the ESA claim. However, these concerns cannot override the significant administration of justice considerations that need to be balanced with concurrent proceedings. As stated in McFarlane v. Farraway, 2012 HRTO 657, “[w]here the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding.”
13The Tribunal orders the deferral of the Application pending the conclusion of the ESA process. Where 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).
14I am not seized.
Dated at Toronto, this 29th day of January, 2013.
”signed by”
Ena Chadha
Vice-chair