Human Rights Tribunal of Ontario
B E T W E E N:
Dongmei Ye Applicant
-and-
Pestell Pet Products Inc. Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw Date: July 29, 2014 Citation: 2014 HRTO 1132 Indexed as: Ye v. Pestell Pet Products Inc.
WRITTEN SUBMISSIONS
Dongmei Ye, Applicant Self-represented
Pestell Pet Products Inc., Respondent Matthew Mihailovich, Counsel
Introduction
1This Application alleges reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The respondent requests that the Tribunal defer the Application on the basis that there is an ongoing Employment Standards Act (ESA) claim before the Ministry of Labour with respect to the same allegations.
3A June 19, 2014 Notice of Intent to Defer advised the parties it may be appropriate to defer this Application pending the resolution of another legal proceeding dealing with the same subject matter pursuant to Rule 14 of the HRTO's Rules of Procedure.
4Both the applicant and respondent filed submissions. The applicant submits the two legal proceedings deal with two different issues. The applicant submits the ESA claim is for payment required under that Act and alleges the respondent did not pay her in full, whereas the Application is for reprisal under the Code. The applicant further submits the resolution of the ESA claim will not affect the claim made in the Application.
5The respondent submits both the Application and the ESA claim are reprisal complaints in relation to the deduction of courier and cancelled cheque fees totalling $46.74. The ESA complaint is currently at the Level II investigation.
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 generally will defer an application where the parties are involved in another proceeding based on the facts or issues raised in the application. Some 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.
8The Tribunal has 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, Mounfield v. Cambridge Memorial Hospital, 2012 HRTO 1400, Matechuk v. OLG at Thousand Islands, 2009 HRTO 324 and Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448.
9In the circumstances of this case, I find that deferral is fair and appropriate. The factual circumstances in the ESA claim and the Application are identical, alleging the improper deduction of courier and cancelled cheque fees as a reprisal, and the remedial claims overlap. If the two matters were to proceed concurrently, there is a real risk that the two proceedings could have inconsistent findings of fact.
10The Tribunal orders that this Application be deferred pending the conclusion of the ESA process. Where a party wishes to proceed with an application that 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 in accordance with Rules 14.3 and 14.4.
11I am not seized.
Dated at Toronto, this 29th day of July, 2014.
"Signed By"
_______________________________
Dawn J. Kershaw Vice-chair