Allagas v. Plato Adult Education Centre, 2013 HRTO 775

Human Rights Tribunal of Ontario

Between:

Ekaterini Allagas Applicant

-and-

Plato Adult Education Centre Respondent

Interim Decision

Adjudicator: Ena Chadha Date: May 9, 2013 Citation: 2013 HRTO 775 Indexed as: Allagas v. Plato Adult Education Centre

Written Submissions

Ekaterini Allagas, Applicant Self-represented

1The applicant filed this Application on December 20, 2012, 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 sex, family status and reprisal.

2The applicant alleges that she believes she was punished with respect to her employment because she started, and eventually expanded, her family. The applicant believes that she was constructively dismissed. The applicant noted that she commenced a pregnancy reprisal claim in November 2012 with the Ministry of Labour under the Employment Standards Act, 2000 (“ESA”).

3On February 19, 2013, the Tribunal issued a Notice of Intent to Defer the Application on the basis that there is another legal proceeding. The Tribunal invited the parties to file submissions as to whether or not the Application should be deferred.

4The applicant wrote to the Tribunal indicating that she agrees to defer the Application until the Ministry of Labour claim is concluded.

5Although the respondent filed a Response denying the allegations of discrimination and reprisal, the respondent did not file submissions with respect to the issue of deferral.

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 the filing this Application. The ESA claim deals with the applicant’s allegations that she was treated unfairly and reprised against for taking pregnancy leave. It appears that there is significant overlap between the Application and the ESA claim, in particular with respect to the allegations regarding whether or not the applicant was constructively dismissed.

11Tribunal 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.

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 relationship with the respondent. 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. The applicant agrees to defer the Application and the respondent filed no submissions objecting to this approach.

13The 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).

14I am not seized.