El-Khatib v. 1726837 Ontario Inc., 2014 HRTO 1258

Human Rights Tribunal of Ontario

B E T W E E N:

Maissa El-Khatib Applicant

-and-

1726837 Ontario Inc. o/a Paramount Fine Foods, Mohammed Fakih and Nader Shaktour Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: August 26, 2014 Citation: 2014 HRTO 1258 Indexed as: El-Khatib v. 1726837 Ontario Inc.

WRITTEN SUBMISSIONS

Maissa El-Khatib, Applicant Amelio The, Counsel

1726837 Ontario Inc. o/a Paramount Fine Foods and Mohammed Fakih, Respondent Yohuda Levinson, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex. This Interim Decision deals with the applicant’s request to defer the Application pending the completion of a related proceeding before the Courts and the Workplace Safety and Insurance Board (“WSIB”) / Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

2The materials filed by the applicant indicate that she commenced an Action in the Ontario Superior Court of Justice, File No. CV-13-475831; filed an application with the WSIB/WSIAT; and, an Application to this Tribunal regarding her allegations that she was subjected to sexual harassment/assault while in the employ of the organizational respondent. In the cover letter to the Application, counsel for the applicant submitted that the applicant filed the Application to preserve her rights under the Code, but intends to defer the Tribunal hearing pending the resolution of the Court Action and an application to be filed with the WSIAT. The applicant submitted that the WSIAT’s decision regarding the applicant’s right to sue will determine which forum is most appropriate in the circumstances and submitted that the Tribunal should defer the matter until the WSIAT makes its decision.

3The organizational respondent and individual respondent Mohammed Fakih submitted that the applicant chose to commence a multiplicity of actions with a view to increase the costs to the respondents to motivate them to settle with the applicant. The respondents submitted that this practice is abuse of the legal system and that the Application, if not dismissed, should be heard at the earliest opportunity.

Analysis and Decision

4The 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 (Rule 14.1). 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. Some of the factors that may be 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 type 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 Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

5It is clear that the applicant has commenced three legal proceedings based on the same allegations. There is significant overlap in the factual and legal issues raised in the proceedings before the Court, the WSIB/WSIAT and the Tribunal, which raises the potential for inconsistent findings if the matters proceed concurrently. The respondents’ submissions indicate that Affidavits of Documents have been exchanged in the Court Action, which indicates that the Court proceeding is further advanced than this Application. It also appears that the WSIAT’s conclusions regarding the applicant’s right to sue will inform her decision regarding the appropriate forum in which to pursue her claim. In these circumstances, I find it appropriate to defer this Application pending the conclusion of the other proceedings initiated by the applicant.

6The 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.

7I am not seized.