Weinreb v. Ronald V. Zaldin, Barrister and Solicitor, 2013 HRTO 209

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Weinreb

Applicant

-and-

Ronald V. Zaldin, Barrister and Solicitor and Ronald V. Zaldin

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin
Date: February 5, 2013
Citation: 2013 HRTO 209
Indexed as: Weinreb v. Ronald v. Zaldin, Barrister and Solicitor

Introduction

1This is an Application filed November 2, 2012 under s. 34 of the 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 age. This Interim Decision addresses whether or not the Application should be deferred pending another proceeding.

2The Application arises out of the applicant’s employment and the termination of that employment with the respondents. The applicant alleges that she was subjected to comments based on her age and/or disability during her employment and following her employment in the context of a Board of Referees proceeding. In addition, the applicant alleges that she was subjected to discrimination and reprisal when she was terminated from her employment while a younger assistant was retained. As a remedy, the applicant seeks monetary compensation for injury to dignity, self-worth and self-esteem, failure to investigate and for infringement of her right to be free from discrimination.

3In 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 November 2, 2012 and issued on November 5, 2012. The action seeks relief for dismissal without cause including damages for wrongful dismissal. The applicant indicates that she does not seek deferral of the Application.

4On November 22, 2012, the Tribunal delivered the Application to the respondents along with a letter stating that the Tribunal has determined that it may be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application. The Tribunal provided the parties and any affected persons the opportunity to make submissions.

5The respondents have filed submissions seeking deferral of the Application. The respondents state that there are two other legal proceedings – a pending “EI appeal” - from the decision to grant the applicant EI and the Small Claims Court Action referenced and that the Application should be deferred pending the resolution of both proceedings. No documentation from the pending EI appeal is included.

6The applicant has not filed submissions.

DECISION

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that 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.

9In this case, applying these factors and having regard to the submissions made, I find deferral to the Small Claims Court action to be appropriate. On the one hand, the issue of timing is not significant because both the Application and action were commenced around the same time. However, on the other hand, there is significant overlap in some of the factual events underlying the Application and action, particularly the termination of the applicant’s employment which supports deferral to avoid the possibility of inconsistent decisions on facts and/or law. Having regard to the submissions made, including the absence of any submissions from the applicant opposing deferral, I therefore find it appropriate to defer pending the conclusion of the Small Claims Court Action.

10Where 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).

11I have not addressed the respondents’ request that the Application also be deferred to the pending EI appeal. No supporting documents related to the appeal have been included. The issue of whether it is appropriate to defer to this proceeding may be addressed if and when the Application is reactivated.