HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Lane

Applicant

-and-

Canadian Tire Corporation Ltd.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: February 22, 2013

Citation: 2013 HRTO 300

Indexed as: Lane v. Canadian Tire Corporation Ltd.

WRITTEN SUBMISSIONS

Canadian Tire Corporation Ltd., Respondent

Robert Bayne, Counsel

Introduction

1By Application dated June 1, 2012, the applicant alleged that the respondent discriminated against her on the basis of family status and marital status when it terminated her employment. In her Application, the applicant states that the termination was not a result of her performance or conduct. She claims that she was terminated because the respondent did not want her as an employee after it had fired her husband and three other family members.

2On January 25, 2013, the respondent filed a Request for Order during Proceedings requesting that the Application be deferred pending a decision of the Ontario Labour Relations Board (“OLRB”) with respect to an Employment Standards Act (“ESA”) claim made by the applicant.

3In her ESA claim, the applicant alleged that the respondent breached the ESA by failing to reinstate her following her pregnancy and parental leave and by reprising against her for taking these leaves. In October 2012, an Employment Standards Officer issued a decision finding that the respondent had not violated the ESA. The applicant has sought a review of this decision to the OLRB. A hearing date has been set for May 29, 2013.

4The respondent submits that there is a risk of inconsistent findings if the Application is not deferred since the issues in both proceedings overlap. The respondent also submits that the OLRB proceeding is at a more advanced stage than the Tribunal’s proceeding. Finally, the respondent argues that there is no urgency to this Application since the applicant has indicated in her Application that she is currently working and receiving a higher salary than she received from the respondent.

5The applicant has not responded to the respondent’s deferral request.

Decision

6Pursuant 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 or similar issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

7The Tribunal will generally defer an application where the parties are involved in another proceeding based on the facts or issues raised in the application. While 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, Mounfield v. Cambridge Memorial Hospital, 2012 HRTO 1400.

8Some 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.

9The Tribunal has deferred applications where there are on-going ESA claims with facts and issues that overlap with the subject matter of the Tribunal application. See, for example, Mounfield, above, and Matechuk v. OLG at Thousand Islands, 2009 HRTO 324.

[10] I find that deferral is appropriate in the circumstances of this case. The factual circumstances in the Application overlap significantly with those in the applicant’s ESA claim. Therefore there is a risk of inconsistent factual findings surrounding the termination of the applicant’s employment if the two matters were to proceed concurrently. One of the main issues in the OLRB proceeding is whether the respondent terminated the applicant’s employment for bona fide reasons relating to alleged misconduct. The issue before the Tribunal is the same – that is, whether the applicant’s family status or marital status were factors in her termination, or instead whether the sole reason for her termination was the misconduct alleged by the respondent.

[11] An additional factor that militates in favour of deferral in this case is the fact that the OLRB proceeding is at a much more advanced stage and that an actual hearing date has been set for May 2013.

[12] For these reasons, the Tribunal orders the deferral of the Application pending the conclusion of the ESA proceeding before the OLRB. 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 of this matter.