Chapman v. VIQ Solutions Inc., 2015 HRTO 1225

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Chapman

Applicant

-and-

VIQ Solutions Inc.

Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: September 15, 2015 Citation: 2015 HRTO 1225 Indexed as: Chapman v. VIQ Solutions Inc.

WRITTEN SUBMISSIONS

Kathleen Chapman, Applicant Gary Wiseman, Counsel

VIQ Solutions Inc., Respondent Soma Ray-Ellis, Counsel

Introduction

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").

2It was filed on June 1, 2015 and alleges that the applicant was terminated after she informed the respondent that she was pregnant.

3In its Response, in addition to responding specifically to the applicant's allegations, the respondent 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.

4On August 12, 2015, 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.

5The applicant filed submissions objecting to the respondent's request to defer her Application. The applicant submits that the ESA complaint is for termination pay, leaves of absence (pregnancy) and reprisal, whereas the Application is about discrimination during her pregnancy. She would like the Tribunal to continue with her Application without any delays.

analysis and decision

6Pursuant 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.

7The 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.

8While 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 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 ("Ogbonna-Ehirim").

9Some factors that have been identified as relevant in deciding whether to defer consideration of an application 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.

10The 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.

11Tribunal decisions have deferred applications where there were ongoing Ministry of Labour proceedings when the facts and issue raised in the ESA complaints overlapped with the 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.

12It is likely that the ESA complaint will be addressing many of the 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.

13Accordingly, 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.

14Pursuant 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 Proceeding (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal's Rules and Forms can be found on its website.

15I am not seized with this matter.