Clive Perreira v. Vins Plastics Ltd., 2013 HRTO 1620

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clive Perreira Applicant

-and-

Vins Plastics Ltd. Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: September 26, 2013 Citation: 2013 HRTO 1620 Indexed as: Perreira v. Vins Plastics Ltd.

WRITTEN SUBMISSIONS

Clive Perreira, Applicant Valerie Leung, Representative

Vin Plastics Ltd., Respondent Robert Leck, Counsel

1The applicant filed this Application on April 29, 2013, 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 age, race, colour, ancestry, place of origin, ethnic origin and disability. The applicant alleges that during his employment he was subjected to unfair treatment, unsafe working conditions, derogatory remarks and that his employment was discriminatorily terminated.

2On August 8, 2013, the respondent filed its Response denying the allegations and asserts that the applicant’s employment was terminated because of a third serious incident of misconduct. The respondent requests that the Application be deferred because the applicant has filed an appeal with the Ontario Labour Relations Board regarding an Employment Standards Act, 2000 (“ESA”) claim pertaining to the same issues as alleged in the Application. The respondent indicates that one day of hearing has already taken place and two additional hearing days were scheduled for September 2013. The respondent provided a copy of the Employment Standards decision under appeal denying the applicant’s claim for termination and severance pay, as well as a copy of the applicant’s application for review to the Ontario Labour Relations Board.

3On August 29, 2013, the applicant filed submissions opposing the request to defer. The applicant submits that the matter before the Ontario Labour Relations Board does not address his allegations of age, racial and disability discrimination.

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.

5The 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 and order remedies that parallel the Application: see Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280.

6While 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 of Ontario, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330 and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.

7Some 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.

8The applicant’s appeal to the Ontario Labour Relations Board was filed prior to the filing of this Application. The appeal of the ESA decision deals with the applicant’s allegations that he was subjected to discriminatory treatment and harassed culminating in being wrongfully dismissed. The applicant, therefore, seeks financial compensation for termination and severance pay.

9Tribunal 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.

10Based on a review of the applicant’s Ontario Labour Relations Board application, I find that the applicant’s ESA appeal and this Application are virtually identical. Significant portions of the Ontario Labour Relations Board appeal document are duplicated in the Application. There is little doubt that the Ontario Labour Relations Board appeal will be addressing some of the same facts and allegations as raised in this Application, particularly in relation to the circumstances surrounding the end of the applicant’s employment with the respondent, as well as possibly the concerns regarding the applicant’s conduct during his employment.

11In light of the fact that the Ontario Labour Relations Board appeal was commenced first and remains outstanding and the factual basis for both are related, as well as the issue of overlapping remedies, I find it appropriate to defer this Application.

12The Tribunal orders the deferral of the Application pending the conclusion of the Ontario Labour Relations Board matter. 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).

13I am not seized.