Qiu v. Tim Hortons Inc., 2014 HRTO 1135

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Qingrong Qiu

Applicant

-and-

Tim Hortons Inc

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: July 30, 2014

Citation: 2014 HRTO 1135

Indexed as: Qiu v. Tim Hortons Inc.

WRITTEN SUBMISSIONS

Qingrong Qiu, Applicant

Dongmei Ye, Representative

Tim Hortons Inc, Respondent

James Heeney, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of race, colour, place or origin and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In its Response to the Application (Form2) the respondent sought the deferral of this Application pending the conclusion of another legal proceeding. This request was acknowledged and deferred pending mediation between the parties. Mediation was cancelled. In response to a Request for Order During Proceeding (“Request”) filed by the applicant on July 9, 2014 the respondent renewed its request that the Application be deferred pending the conclusion of the other proceeding - a claim under the Employment Standards Act 2000 for unpaid wages and reprisal which is now the subject of a hearing at the Ontario Labour Relations Board. The applicant has responded to this Request both in his Reply (Form 3) and in a Form 11 filed in response to the respondent’s response to the applicant’s Request. This Interim Decision deals with the applicant’s Request for production of documents as well as the respondents request to defer the Application.

The Applicant’s Request

3The applicant seeks the production of documents. The Request is denied both because it is premature and because, for reasons set out below, it is appropriate to defer this Application.

4The Tribunal’s Rules of Procedure provide in Rule 16.1 that no later than 21 days after the Tribunal sends a Notice of Hearing the parties are required to deliver to each other all arguably relevant documents in their possession. A hearing date has not yet been set in this case and no Notice of Hearing has been sent to the parties. Accordingly the applicant’s Request is premature.

The Request to Defer

5The respondent’s request that this Application be deferred pending the conclusion of the proceeding before the OLRB. The applicant opposes the request arguing that the issues raised in the two proceedings are not the same.

6The Request is granted.

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. However the Tribunal has generally deferred applications where there is an ongoing proceeding involving the same underlying facts and/or issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that other adjudicative bodies have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. or Tranchemontagne v. Ontario (Director, Disability Support Program, [2006] 2006 SCC 14.

8The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights issues. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same facts and/or 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. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

9In this case, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those arising from the ESA claim. The applicant does not dispute that the same facts are in play in the two proceeding but argues essentially that a different legal argument is being made about those facts. In my view this is sufficient to support deferral – one of the important reasons to defer being to avoid different conclusions about the facts in two concurrent proceedings.

10The Application will therefore be deferred pending the completion of the grievance process.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The Union’s Request to Intervene will be dealt with by the Tribunal if the Application is brought back on.

Other Matters

12The respondent has expressed concern about the conduct of the applicant and in particular the applicant’s representative in this case. Amongst other things the respondent complains that the applicant’s representative has accused respondent’s counsel of lying and misleading the Tribunal. Without going into the detail of the applicant’s charges it suffices to say that they are completely unfounded. As the applicant has been advised by Tribunal staff it is commonplace and accepted practice for staff of counsel to sign correspondence on their behalf.

13The applicant is directed to cease making inappropriate comment about the respondent and/or its representative and is reminded of Tribunal’s Rule 1.12.1:

All materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants

14The Tribunal has commented on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 335, at paras. 4-7, the Tribunal stated as follows:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

15In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at paras. 8-9, the Tribunal stated as follows:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

16The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. The Tribunal has applied this power to dismiss Applications where parties have engaged in vexatious conduct in the Tribunal’s process. See for example Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085; n Okunbor v. Hopewell Logistics, 2009 HRTO 2124 and Vizcaya v. University of Toronto 2012 HRTO 916..

Orders and Directions

17The Tribunal makes the following Orders and Directions

a. The applicant’s Request is denied at this stage;

b. The Application is deferred pending the conclusion of the proceeding before the OLRB

c. The applicant is directed to cease making inappropriate and unfounded allegations about the respondent and/or its representative.

18I am not seized of this case.