Salinas v. Vigour Limited Partnership, 2014 HRTO 1236

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Myriam Salinas

Applicant

-and-

Vigour Limited Partnership

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: August 20, 2014

Citation: 2014 HRTO 1236

Indexed as: Salinas v. Vigour Limited Partnership

WRITTEN SUBMISSIONS

Myriam Salinas, Applicant

Marvin A. Gorodensky, Counsel

Vigour Limited Partnership, Respondent

Todd Weisberg, Counsel

INTRODUCTION

1The applicant alleges discrimination with respect to employment on the grounds of age and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2The applicant alleges that she was terminated by her employer after she became disabled and at a time when she was contemplating surgery and likely to require sick leave benefits. The applicant alleges that the stated reason for her termination – that the company was moving in a different direction – is a pretext and that her age and/or disability related symptoms of fatigue and lack of concentration were the reason for her termination.

3On July 11, 2014, the Tribunal issued a Notice of Intent to Defer this Application on the basis that the applicant commenced a civil proceeding in respect of her termination. The parties were invited to provide the Tribunal with submissions in relation to the issue of deferral. The applicant opposes deferral while the respondent supports deferral.

4The civil proceeding commenced by the applicant against the respondent does not allege an infringement of her rights under the Code or seek a remedy in respect of such alleged infringement.

5The applicant argues that the facts at issue in the civil proceeding do not overlap with the facts in the Application and that the civil proceeding is concerned with distinct legal issues. Other than these statements, there is no description in the applicant’s submissions which would assist me in understanding how the facts underlying the civil proceeding are distinct from the facts underlying the human rights Application.

6The respondent argues that the civil proceeding will deal with findings of fact and address issues relating to the applicant’s employment and termination. The respondent argues that the claim for bad faith or moral damages will necessarily involve examination of the reasons for the applicant’s termination.

DEFERRAL

7Pursuant 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 seeks to ensure that proceedings dealing with the same subject-matter do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

8The Tribunal has deferred applications where parallel proceedings raise similar facts and issues. In such cases, the Tribunal has noted that concurrent proceedings not only increase the burden on the parties, they raise the possibility of inconsistent findings of fact and law. See, for example, Tsehaye v. English District Lutheran Church-Missouri Synod, 2010 HRTO 1396.

9Since both the Application and the civil claim arise out of the very same incident, I find that there is a significant factual overlap in this case, especially as it relates to the reasons for the applicant’s termination. It appears that both proceedings are likely to run in parallel unless the Application is deferred. For these reasons, I have determined that the Application should be deferred pending the conclusion of the applicant’s civil claim.

10The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the civil proceedings. It should be noted that a party who wishes to seek reactivation of the Application must file a request to reactivate no later than 60 days after the conclusion of the parallel proceeding. The Tribunal’s Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “Law, Rules and Policies”.

ORders

11For the reasons set out above, the Tribunal orders:

a. The Application is deferred pending the outcome of the applicant’s civil proceeding.

12I am not seized of this matter.