Tran v. Sensors and Software Inc., 2013 HRTO 1616

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thi Tran

Applicant

-and-

Sensors and Software Inc.

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: September 25, 2013

Citation: 2013 HRTO 1616

Indexed as: Tran v. Sensors and Software Inc.

Background

1This is an Application filed May 16, 2013, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination against the employer respondent based on pregnancy and age. She alleges that the respondent did not reinstate her after a pregnancy leave, and that the person who had replaced her while she was on leave is four years younger and was allowed to keep the position.

Deferral

2In the Application, the applicant indicated that the Application should be deferred pending the outcome of a proceeding at the Ministry of Labour.

3On June 24, 2013, the Tribunal issued a Notice of Intent to Defer the Application pending the outcome of another legal proceeding dealing with the subject-matter of the Application. The Notice of Intent to Defer invited the parties to respond with submissions with regard to the deferral issue by July 24, 2013. The respondent filed submissions which state that the applicant filed a complaint against it under the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the “ESA”). The claim alleges that the applicant was penalized, essentially reprised against, for taking a maternity leave and not being returned to her pre-maternity leave position. The respondent’s submissions also state that the remedies sought in the Application and the ESA claim overlap.

4The applicant did not respond and the time for doing so has now passed, but I note that she indicated in her Application that she would like to defer.

Decision

5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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. See, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779, and Gordon v. Leisureworld Caregiving Centre, 2011 HRTO 577.

6The Tribunal has deferred applications where there is an ongoing ESA proceeding dealing with the same subject matter. See for example Rogers v. Holcim (Canada), 2011 HRTO 867. The remedies that are available to a person under the ESA and the Code are quite similar. Pursuant to section 104(1) of the ESA, if an Employment Standards Officer finds that an employer has contravened the reprisal provisions of the ESA, the Ministry of Labour may order that the employee be compensated for loss or that she be reinstated, or both compensated and reinstated. Compensation can include compensation under various heads of damages, including lost wages, loss of reasonable expectation of continued employment, and emotional pain and suffering. The remedies potentially available under the ESA are thus similar, although perhaps not identical, to the remedies that are available under the Code.

7The ESA claim as described by the respondent is similar in many ways to the subject matter of the Application. It would not be fair to the parties to be required to pursue more than one proceeding dealing with substantially the same facts and issues at the same time. There is a potential for inconsistent findings in the two proceedings. It is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues. Given that the applicant has not disputed the respondent’s description of her ESA claim, I find that it is most fair, just and expeditious to defer this Application.

Order

8In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the final conclusion of the ESA proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance with Rule 19, the Tribunal to proceed with an Application after the conclusion of another process.

9I am not seized of this matter.