[1] This is an Application 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 place of origin, ethnic origin and disability. In particular, the applicant, who was previously employed by the respondent as a superintendent, alleges that he was harassed by members of the respondent condominium’s Board of Directors from July 2011 onwards, and that the respondents terminated the applicant’s employment on September 7, 2011 for discriminatory reasons.

[2] In his human rights Application, the applicant indicates that he has also filed a wrongful dismissal action against the respondent condominium in Small Claims Court. The civil claim, which is attached to the Application, does not appear to contain the allegation that the respondents harassed and/or discriminated against the applicant because of his place of origin, ethnic origin and/or disability. Rather, it claims that the respondent condominium terminated the applicant’s employment without reasonable notice.

NOTICE OF INTENT TO DEFER

[3] On November 29, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding, namely the wrongful dismissal action. The Tribunal directed the parties to deliver and file any written submissions that they wished to make in respect of the deferral issue by January 7, 2013.

[4] In his Application and his response to the Notice of Intent to Defer, the applicant opposes deferral of the Application. In support of his position, the applicant points out that the wrongful dismissal action was adjourned by the Small Claims Court sine die on November 14, 2012, pending service of the human rights Application on the respondent by the Tribunal. This is confirmed by a copy of the Small Claims Court order provided by the applicant. In the circumstances, the applicant asks that his human rights Application proceed in the normal course.

[5] The respondent condominium has not filed submissions as directed in response to the Notice of Intent to Defer. The personal respondent did not make any submissions on deferral either as the Tribunal’s correspondence to him was returned as undeliverable.

ANALYSIS AND DECISION

[6] In the circumstances of this case, I am not satisfied that the Application ought to be deferred pending the completion of the wrongful dismissal action.

[7] 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 (Rule 14.1). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer to another legal proceeding that raises some or all of the same facts and issues as the Application. However, the Tribunal must 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.

[8] The issue in the Application is whether the respondents harassed the applicant from July 2011 onwards, and terminated his employment in September 2011, because of one or more prohibited grounds under the Code. Based on the materials before me, it does not appear that these are issues in the proceeding before the Small Claims Court. On the contrary, it appears that the issue before the Small Claims Court is whether the pay in lieu of notice of termination that the applicant received upon the termination of his employment with the respondent condominium constituted reasonable notice. This is obviously not an issue in the human rights Application, nor does the Tribunal have jurisdiction to address claims that an employee has been dismissed without just cause and/or without reasonable notice of termination.

[9] It appears that the issues in the civil proceeding and the human rights Application are thus quite distinct. The reason for deferring an Application – avoiding inconsistent findings of fact or law by adjudicators in concurrent proceedings – does not exist where there is no ongoing proceeding before the courts with respect to the subject-matter of the Application.

[10] In addition, even if the facts and issues in the Application and the civil action do overlap to some extent, the risk that there will be inconsistent factual findings if the Application is not deferred appears to be small in this case, given the fact that the civil action appears to have been adjourned sine die.

[11] For the above reasons, I find that it would not be appropriate to defer consideration of the Application. The Application will continue in the Tribunal’s process.

NEXT STEPS

[12] The Tribunal sent the respondent condominium a copy of the Application in November 2012 with the Notice of Intent to Defer. Since the respondent condominium has already had the Application for some time, I find it appropriate to require the respondent condominium to file its Response to the Application within 21 days of the date of this Interim Decision.

[13] The Tribunal also delivered a copy of the Application and the Notice of Intent to Dismiss to the personal respondent in November 2012, at the same address as the respondent condominium. However, as noted above, the package was returned to the Tribunal as undeliverable. According to the applicant, the personal respondent is or was the President of the respondent condominium’s Board of Directors. In the circumstances, I find it fair, just and expeditious to require the respondent condominium to write to the Tribunal and the applicant within five (5) days of the date of this Interim Decision and to provide the last known address for the personal respondent, Mark Alphonso, so that the Tribunal may deliver a copy of the Application to him.

DIRECTIONS

[14] In sum, the Tribunal directs as follows:

a. The Application is not deferred and will continue in the Tribunal’s process.

b. The respondent condominium is directed to file its Response to the Application within 21 days of the date of this Interim Decision.

c. The respondent condominium is directed to write to the Tribunal and the applicant within five (5) days of the date of this Interim Decision and to provide the last known address for the personal respondent, Mark Alphonso, so that the Tribunal may deliver a copy of the Application to him.

[15] I am not seized.

Dated at Toronto, this 21^st day of March, 2013.

“Signed by”

Sheri D. Price

Vice-chair

Gutierrez v. York Condominium Corporation 386, 2013 HRTO 482

Case Summary