Fernandes v. Smart Corporation, 2013 HRTO 774

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paulo Fernandes Applicant

-and-

Smart Corporation Respondent

INTERIM decision

Adjudicator: Ena Chadha Date: May 9, 2013 Citation: 2013 HRTO 774 Indexed as: Fernandes v. Smart Corporation

WRITTEN SUBMISSIONS

Paulo Fernandes, Applicant Self-represented

Smart Corporation, Respondent Jorge Soares, Representative

1The applicant filed this Application on October 22, 2013, under section 34 of the Ontario 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 and citizenship. The applicant alleges that during his employment he was subjected to discriminatory remarks with respect to his ethnic background, that his employment was discriminatorily terminated and that the respondent failed to properly pay him. The applicant also alleges that the respondent reneged on his promise to sponsor his work permit.

2On February 15, 2013, the respondent filed its Response denying the allegations. The respondent submits that the applicant was not an employee, but rather an independent contractor and that relationship was severed because the applicant did not fulfill his obligations with respect to his contract.

3The respondent requests that the Application be deferred because the applicant has also filed a claim with the Ministry of Labour under the Employment Standards Act, 2000 (“ESA”). The respondent provided a copy of a letter dated October 17, 2013 from the Ministry of Labour notifying the respondent that the applicant had launched a claim for unpaid wages, overtime pay, deductions from wages and termination pay.

4The applicant filed submissions opposing the request to defer. The applicant maintains that he was an employee and not a contractor. The applicant argues against deferral because he was informed by the lawyer to file both cases and that he made the ESA claim to get paid what he believes he is owed under law.

DECISION

5Pursuant 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.

6The 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.

7While 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 of Ontario, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330 and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.

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 applicant’s ESA claim was filed prior to the filing of this Application. The ESA claim deals with the applicant’s allegations that he was wrongfully dismissed and seeks financial compensation for various things, including unpaid overtime and unfair deductions. It appears that the Application and the ESA claim overlap with respect to the issue of whether or not the applicant was retained as a contractor or employed as an employee, his work permit status, as well as the issue of unfair deductions during his tenure with the respondent.

10Tribunal decisions have deferred applications where there were on-going 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.

11There is little doubt that the ESA claim will be addressing some of the same facts and allegations as raised in this Application, particularly in relation to the circumstances surrounding the end of the applicant’s relationship with the respondent, as well as possibly the scope of the applicant’s work permit. In light of the fact that the ESA claim was commenced first and remains outstanding and the factual basis for both are related, as well as the issue of overlapping remedies, I find it appropriate to defer this Application.

12The 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).

13I am not seized.