HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Kennedy
Applicant
-and-
Pharma Plus Drugmarts Limited (Katz Group Canada Ltd.)
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Kennedy v. Pharma Plus Drugmarts Limited (Katz Group Canada Ltd.)
WRITTEN SUBMISSIONS
Robert Kennedy, Applicant
Marvin Gorodensky, Counsel
Pharma Plus Drugmarts Limited (Katz Group Canada Ltd.), Respondent
Kathryn Bird, Counsel
1This Interim Decision explains why the Tribunal is deferring consideration of this Application, which alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant worked for the respondent as a pharmacist from 2001 until 2013. In 2012 the Ontario Legislature expanded the scope of practice for pharmacists, including by allowing them to provide flu vaccinations to the public by way of needle injection. As a pharmacist working for the respondent, the applicant would now be required to offer this service to the public.
3The applicant states that he has a phobia of needles that causes him to become nauseous and to faint when he sees them. He alleges that he made this known to the respondent and requested accommodation that would enable the respondent to offer the new service yet without obliging him to be the one administering injections to patients. He further alleges that the respondent would not accommodate this request and eventually terminated his employment. His Application alleges that his phobia and his request for accommodation were factors in the decision to terminate his employment.
4The applicant has also started an action for wrongful dismissal against the respondent. Neither the statement of claim nor the statement of defence make reference to the reasons underlying the termination of the applicant’s employment. There is no reference in any of those pleadings to any alleged discrimination or Code violations. On the face of the pleadings the action appears to be about what the applicant was entitled to upon having his employment terminated without cause, including whether he should be awarded more money than the respondent paid him and whether he should be entitled to punitive damages.
5On May 9, 2014 the Tribunal requested submissions from the parties by June 9 on whether the Application should be deferred until the civil action is resolved.
6The respondent argues for deferral. It maintains that, despite the absence of any reference to allegations of discrimination in the court pleadings, the civil action is about the same facts and issues as this Application. From this it argues that the Application should be deferred, because allowing the two proceedings to run concurrently raises the risk of inconsistent findings being made in relation to the same facts and issues. It further argues that, as a mediation of the civil action is scheduled in July of 2014, the court proceedings are more advanced than the Application and this is another reason to defer.
7Despite having had the opportunity to do so, the applicant has not filed any submissions to contradict the respondent’s arguments. Specifically, he has not taken issue with the respondent’s argument that the subject matter of both proceedings is the same. Absent any argument to the contrary, I am prepared to accept the respondent’s assertion that the facts and issues in both proceedings are the same.
8The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve allegations of discrimination brought before it.
9In this case there is a substantial overlap of facts and issues between the civil action and the ones raised in this Application. The court has the authority to address any allegations of discrimination the applicant may raise in those proceedings.
10This overlap of facts and issues, along with failure of the applicant to explain how the subject matter of this Application is different from the subject matter of the court proceedings, are reasons to exercise discretion in favour of deferral. Further, the forthcoming mediation may resolve the civil action shortly. The fact that those proceedings are more advanced than this Application is a further reason to defer the Application.
order
11The Application is deferred pending resolution of the civil action.
12The parties’ attention is directed to Tribunal Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the other proceedings.
Dated at Toronto, this 25th day of June, 2014.
“Signed by”
Paul Aterman
Vice-chair