Asma Molana v. Royal College of Dental Surgeons of Ontario, 2014 HRTO 1390

Human Rights Tribunal of Ontario

B E T W E E N:

Asma Molana Applicant

-and-

Royal College of Dental Surgeons of Ontario Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: September 18, 2014 Citation: 2014 HRTO 1390 Indexed as: Molana v. Royal College of Dental Surgeons of Ontario

1This Application alleges discrimination with respect to employment because of sex, including pregnancy, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It was filed on June 26, 2014 and alleges that the applicant was terminated after she informed the respondent that she was pregnant.

2In its Response, in addition to responding specifically to the applicant’s allegations, the respondent has requested that the Tribunal defer the Application because the applicant filed a complaint under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“the ESA complaint”), pertaining to the same issue. As part of its submissions, the respondent attached a letter from the Ministry of Labour (“the Ministry”) dated June 26, 2014 advising the respondent that it received the ESA complaint and requiring the respondent to file materials with the Ministry.

3On August 27, 2014, the Tribunal sent the Response to the applicant for Reply. It also requested that the applicant file submissions addressing the respondent’s request to defer.

4The applicant filed her Reply on September 10, 2014. However, the Reply does not address the respondent’s request to defer.

decision

5Pursuant 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.

6The 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.

7While 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 of Ontario, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330 and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.

8Some 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.

9The applicant’s ESA complaint appears to have been filed prior to the filing of this Application and is based upon the applicant’s pregnancy although the exact allegations are not known as the ESA complaint itself has not been provided to the Tribunal. However, it appears that there is significant overlap between the Application and the ESA complaint by virtue of the pregnancy issue being raised in both proceedings.

10Tribunal 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, above.

11It is likely that the ESA complaint will be addressing the same facts and allegations as those raised in this Application. In light of the fact that the ESA complaint required the respondent’s position prior to its filing of the Response, as well as the same issue being raised in both proceedings, I find it appropriate to defer this Application.

12Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the Employment Standards proceeding before the Ministry of Labour and any related reviews or appeals.

13Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.

14I am not seized with this matter.