Human Rights Tribunal of Ontario

B E T W E E N:

Warren Skuse

Applicant

-and-

E.D. Smith Foods Ltd., William Campbell

and Chris Bryant

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 4, 2013

Citation: 2013 HRTO 1674

Indexed as: Skuse v. E.D. Smith Foods Ltd.

WRITTEN SUBMISSIONS

Warren Skuse, Applicant ) Kathy Chittley-Young, Counsel

E.D. Smith Foods Ltd., William Campbell ) Joseph Cohen-Lyons, Counsel

and Chris Bryant, Respondents )

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 an Employment Standards proceeding.

2The applicant was employed by the organization respondent as a labourer. On May 7, 2013, he filed an Employment Standards claim with the Ministry of Labour and an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). In both proceedings, his main allegation was that his employer unlawfully terminated his employment, and his main remedial request was for monetary damages to compensate him for the unlawful termination.

3On July 31, 2013, the respondents filed a Response, which requested that the Tribunal defer consideration of the Application until the conclusion of the proceeding before the Ministry of Labour.

4On August 19, 2013, the applicant filed a Reply, which opposed the respondents' deferral request on the basis that he is suffering financial hardship.

5Section 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.

6In 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.

7In 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 significant overlap, which means that there is a potential for duplication of evidence and inconsistent findings of fact and law. I appreciate that the applicant is suffering financial hardship, but this is not a relevant factor in deciding whether or not to defer the Application.

8Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the Employment Standards proceeding before the Ministry of Labour and any related reviews or appeals.

9Pursuant to Rules 14.3 and 14.4 of the Tribunal's Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal's Rules and Forms can be found on its website.

10I have noted that when the Application (Form 1) was filed, in addition to filling out the representative section, the applicant's counsel checked off the box for filing an Application on Behalf of Another Person. In view of this, the Tribunal's Registrar requested that the applicant's counsel file an Application on Behalf of Another Person (Form 4), which she did. The effect of this is that the Application is filed under s. 34(5) of the Code. These steps go above and beyond merely being a person's legal representative. It is not clear to me that this was the applicant's counsel's intention. As such, unless the applicant's counsel notifies the Tribunal otherwise, the Tribunal will treat the Application as one filed under s. 34(1) of the Code, and treat the checking off of the box for filing an Application on Behalf of Another Person and the filing of the Form 4 as inconsequential errors.

11The Tribunal makes the following orders and directions:

1. The Application is deferred pending the conclusion of the Employment Standards proceeding before the Ministry of Labour and any related reviews or appeals.

2. Pursuant to Rules 14.3 and 14.4 of the Tribunal's Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding.

3. The Tribunal will treat the Application as one filed under s. 34(1) of the Code, unless the applicant's counsel notifies the Tribunal otherwise.

12I am not seized of this matter.