Mario Grimaldi v. Bomben Plumbing & Heating Ltd., 2013 HRTO 1935

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mario Grimaldi Applicant

-and-

Bomben Plumbing & Heating Ltd. Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: November 21, 2013 Citation: 2013 HRTO 1935 Indexed as: Grimaldi v. Bomben Plumbing & Heating Ltd.

WRITTEN SUBMISSIONS

Mario Grimaldi, Applicant Self-represented

Bomben Plumbing & Heating Ltd., Respondent Michael Cohen, Counsel

Introduction

1This is an Application filed on October 1, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application, alleges discrimination with respect to employment because of place of origin, ethnic origin, creed, sex, gender identity, age and reprisal. The Application alleges that the applicant was subject to harassing and discriminatory treatment while employed with the respondent and that the subsequent termination of his employment was discriminatory as well.

2In the Application, the applicant states that there is a court action based on the same facts as the Application although no remedy is sought based on the discrimination. Attached to the Application is a Plaintiff’s Claim filed in Small Claims Court dated September 12, 2013 and issued on September 13, 2013. The action seeks damages for breach of contract and wrongful dismissal. The Application indicates that the applicant is not seeking deferral of the Application pending the resolution of his court action..

3Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

4On October 21, 2013 the Tribunal issued a Notice of Intent to Defer this Application because the applicant had indicated in his Application that the facts and issues raised were also raised in a Small Claims Court action against the respondent.

5On November 11, 2013 the applicant provided his submissions opposing deferral. The applicant submits that his Application differs significantly from his Small Claims Court action. He submits his Application should be dealt with expeditiously since the events that have given rise to the Application have caused him hardship, stress and mental anguish including the fact that he has had difficulty finding other employment. He submits that his court action may take months to be heard. He submits that failing to resolve his Application in a timely fashion will allow the respondent to continue its abusive practices.

6On November 8, 2011 the respondent provided its submissions simply stating that the Application should be deferred pending the outcome of the applicant’s court action.

DECISION

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues and/or facts do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

8Some 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.

9Applying these factors and having regard to the submissions made in the present case I find deferral to the Small Claims Court action to be appropriate. While the applicant’s court action was commenced first I do not ultimately find the issue of timing to be significant because both the Application and the applicant’s court action were commenced around the same time. However, I do find there is significant overlap in many of the factual events underlying the Application and court action including the termination of the applicant’s employment and I am of the view proceeding with the Application at this time could lead to inconsistent decisions on fact and law. This outweighs the applicant’s concerns.

10The Application is deferred pending the conclusion of the Small Claims Court Action.

11Where 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).

12I am not seized of this case.