Jacob v. Jathy Inc. o/a Circles, 2014 HRTO 1398

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Coleen Jacob

Applicant

-and-

Jathy Inc. o/a Circles, Carrie Berlinghoff, Tammy Dupuis, Braden Pentland and Teresa Lydon

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: September 18, 2014

Citation: 2014 HRTO 1398

Indexed as: Jacob v. Jathy Inc. o/a Circles

WRITTEN SUBMISSIONS

Coleen Jacob, Applicant

Self-represented

Jathy Inc. o/a Circles, Carrie Berlinghoff, Tammy Dupuis, Braden Pentland and Teresa Lydon, Respondents

William Watson and Jordan Kirkness, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ethnic origin and disability. The purpose of this Interim Decision is to determine whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of proceedings under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”).

Background

2In her Application, the applicant alleges that the respondents failed to accommodate her disability and discriminated against her because of her race, colour and ethnic origin. Amongst other things, the applicant states that the respondents improperly reduced her bonus for a period of three months. There is no dispute that the applicant also filed a complaint under the ESA regarding the reduction to her bonus. In their Response, the respondents requested that the Tribunal defer the Application until the completion of the applicant’s complaint under the ESA. The respondents submitted that there is significant overlap between the applicant’s ESA claim and this Application. In her Reply, the applicant submitted that the Ministry of Labour will deal with the bonus issue and requested that the Tribunal focus on the issues of discrimination because of race and disability. The applicant submitted that the Tribunal should not defer the Application and noted that she had been informed that it may take over six months for her ESA claim to be resolved.

Analysis and Decision

3The 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.

4The extent to which the Employment Standards Officer may have the authority to deal with the alleged human rights issues is not clear. The ESA does not expressly incorporate the Code or give decision makers authority to resolve human rights issues. However, the Supreme Court of Canada has found that statutory tribunals that are empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the Code to a matter properly in front of them (Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14). It is not clear if this applies to a decision of an Employment Standards Officer although it would clearly apply to the Ontario Labour Relations Board (OLRB) which hears appeals under the ESA from decisions of an Employment Standards Officer.

5In this case, one of the allegations in the Application is the same as the applicant’s ESA claim, i.e., the reduction of the applicant’s bonus. If the ESA claim and the Application proceed at the same time, the parties will be required to concurrently address substantially the same issues in two different forums. While I appreciate that the alleged reduction in the applicant’s bonus is only one of the issues in her Application, there is a potential for inconsistent findings, which is to be avoided.

6In light of these considerations, I am satisfied that the Application should be deferred until the ESA proceeding has been concluded or abandoned. The Tribunal’s Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.

7I am not seized of this matter.