Louis MacPherson v. Leon’s Furniture Limited, 2014 HRTO 944

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis MacPherson Applicant

-and-

Leon’s Furniture Limited Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: June 26, 2014 Citation: 2014 HRTO 944 Indexed as: MacPherson v. Leon’s Furniture Limited

WRITTEN SUBMISSIONS

Louis MacPherson, Applicant Self-represented

Leon’s Furniture Ltd., Respondent Kate MacNeill-Keller and Lisa Constantine, Counsel

Introduction

1This Interim Decision addresses the respondent to defer the Application as well as the applicant’s request to amend the remedy sought in the Application. This Interim Decision follows Interim Decision, 2014 HRTO 605, and a Case Assessment Direction in which I sought further clarification from the parties regarding the status of the civil claim filed by the applicant.

2The applicant filed an Application alleging that his employer discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”). The applicant alleged that his employer discriminated against him by failing to provide reasonable accommodations after one or more of his Short Term Disability leaves and by discriminating in respect of the Long Term Disability (“LTD”) benefits provided to him.

3He has also filed a civil claim against his employer and the two LTD benefit providers alleging, among other things, breach of contract and negligent misrepresentation.

Respondent’s Request to Defer

4By letter dated April 22, 2014, the respondent requested that the Tribunal defer consideration of the Application because the applicant has filed a parallel civil claim against it and the two LTD insurers. The respondent submitted that a deferral is appropriate due to the duplication of proceedings if both claims proceed at the same time. The applicant opposed deferral on the basis that the civil claim may take years to resolve. He also submitted that the delay in the resolution of his claims is having a serious impact on both his financial and physical well-being.

5The 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 or similar issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

6The Tribunal will generally defer an application where the parties are involved in another proceeding based on the facts or issues raised in the application. While 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, Mounfield v. Cambridge Memorial Hospital, 2012 HRTO 1400.

7Some 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.

8In this case, there are factors weighing in favour of deferral, as well as against it. To begin, there is a close relationship between the factual underpinnings of both proceedings. Although the Application is not barred under section 34(11) of the Code, there is a public interest in avoiding the duplication of adjudicative proceedings hearing the same evidence and making factual findings based on the same evidence. Not only would concurrent proceedings increase the burden on the parties, it raises the possibility of inconsistent findings of fact by adjudicators in the two proceedings. The close relationship between the factual underpinnings of the two proceedings weighs in favour of deferral.

9However, other factors weigh against deferral in this case. While there is a close relationship between the factual underpinnings of the two proceedings, the legal issues are distinct. The applicant’s civil claim primarily alleges breach of contract and/or negligent misrepresentation with respect to his LTD benefits. The applicant’s Application alleges that his employer discriminated against him because of disability by failing to provide reasonable accommodations after one or more of his Short Term Disability leaves and by discriminating in respect of the LTD benefits provided to him. The fact that these legal issues are distinct from the legal issues raised in the civil claim weighs against deferral. As well, the fact that the civil claim remains in its very early stages also weighs against deferral since it is unlikely that the hearings in both cases will occur in tandem.

10As a result of all of the above, I find that there appears to be relatively little risk of inconsistent findings of fact and law if the Tribunal proceeds with the Application in the circumstances of this case. Therefore, the respondent’s request for deferral is denied at this stage. If it becomes apparent that there is a significant risk of overlapping legal issues and/or inconsistent legal or factual findings at a later stage, the respondent may renew its deferral request at that time.

Request to Amend Damages Sought in Application

11The Tribunal has a discretion in awarding damages if it finds a breach of the Code. Remedial requests are generally dealt with by the adjudicator assigned to the case. Therefore, the adjudicator assigned to hear this case will deal with the applicant’s remedial request either prior to the hearing or as part of the hearing on the merits of the Application.

Order

12For the reasons set out above, the Tribunal denies the respondent’s request to defer consideration of the Application.

13The Tribunal’s Registrar shall schedule a two day hearing into the merits of the Application.

14I am not seized of this matter.