Sarbijit Kaur v. Barry J. Stafford Enterprises Inc., 2013 HRTO 676

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sarbijit Kaur Applicant

-and-

Barry J. Stafford Enterprises Inc. Respondent

INTERIM decision

Adjudicator: Ena Chadha Date: April 23, 2013 Citation: 2013 HRTO 676 Indexed as: Kaur v. Barry J. Stafford Enterprises Inc.

WRITTEN SUBMISSIONS

Sarbjit Kaur, Applicant Dharminder Kumar, Representative

1The applicant filed this Application on January 2, 2013, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment on the basis of disability. The applicant alleges that, after advising the respondent that she was unable to work because of injuries sustained in a car accident, the respondent pressured her to resign her employment. The applicant alleges that afterwards the respondent refused to cooperate and provide her employment documentation and record of employment.

2On February 20, 2013, the respondent filed its Response denying the allegations. The respondent requests that the Application be deferred because the applicant filed a claim with the Ministry of Labour under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). The respondent provided a copy of letter dated January 2, 2013 from the Ministry of Labour notifying the respondent that the applicant had launched a claim for termination and severance pay.

3On February 21, 2013, the Tribunal delivered the Response to the applicant along with a Notice of Request to Defer. The Tribunal directed the applicant to file submissions as to why consideration of the Application should or should not be deferred pending conclusion of the Ministry of Labour ESA claim.

4The applicant filed a Reply and submissions on March 13, 2013 opposing deferral. The applicant argues against deferral because the delay would exhaust her tenuous resources. The applicant submits that, while the Application deals with the link between the applicant’s resignation and her disability, the ESA claim will only deal with the issues of “severance or termination pay, undue pressure to resign, wrongful dismissal, length of service”. The applicant submits that it is possible for both proceedings to run concurrently.

5The applicant subsequently provided a copy of the ESA claim which appears to be dated December 31, 2012.

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

7The 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. The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts and order remedies that parallel the Application: see Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280.

8While 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, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330; and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.

9Some 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.

10The applicant’s ESA claim was filed prior to her filing this Application. The ESA claim deals with the applicant’s allegations that her dismissal arose out of her disability concerns and seeks financial compensation for the alleged forced resignation. A review of the applicant’s ESA forms reveals that the Application narrative and the ESA complaint, as well as the remedial claims, are almost identical.

11Tribunal decisions have deferred applications where there were ongoing Ministry of Labour proceedings when the facts and issue raised in the ESA claims overlapped with subject matter of the applications: see for example, Matechuk v. OLG at Thousand Islands, 2009 HRTO 324; Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448; and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, supra.

12There is little doubt that the ESA claim will be addressing the same facts and allegations as raised in this Application, particularly in relation to the circumstances surrounding the end of the applicant’s employment. In light of the fact that the ESA claim was commenced first and remains outstanding and the factual basis for both are identical, as well as the overlapping remedies, I find it appropriate to defer this Application.

13I appreciate that the applicant’s financial circumstances may be difficult and that she is concerned about delays in the progress of the Application. However, these concerns cannot override the significant administration of justice considerations that need to be balanced with concurrent proceedings. As stated in McFarlane v. Farraway, 2012 HRTO 657, “[w]here the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding.”

14The Tribunal orders the deferral of the Application pending the conclusion of the ESA process. 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).

15I am not seized.