HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zoran Backovic

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented

by the Ministry of Labour and Sinem Askin

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: October 1, 2015

Citation: 2015 HRTO 1300

Indexed as: Backovic v. Ontario (Labour)

WRITTEN SUBMISSIONS

Zoran Backovic, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Labour and Sinem Askin, Respondents

Jason Tam, Counsel

Introduction

1This Interim Decision addresses whether it is appropriate for the Tribunal to defer consideration of this Application pending the outcome of the applicant’s appeal under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

2In his Application, the applicant alleges that the respondents discriminated against him because of gender identity, gender expression and sexual orientation contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). Having reviewed the Application, his allegations are more properly characterized as allegations of sex discrimination, as he is alleging discrimination because he is a man. In particular, he alleged that the Employment Standards Officer (“ESO”) assigned to his case discriminated against him because he is a man in the following ways:

a. Issuing a decision that is “full of blatant lies and sheer nonsense”;

b. Reporting the applicant to the police for no reason.

c. Refusing to communicate with him.

3The applicant sought the following remedies:

a. Nullification of the ESO’s decision;

b. Issue a new, reasonable decision;

c. $200,000 in monetary compensation; and

d. training of Ministry staff on human rights issues.

4On August 17, 2015, the Tribunal sent the parties a Notice of Intent to Defer (“Notice”) the Application pending the outcome of the applicant’s appeal to the Ontario Labour Relations Board (“OLRB”). The Tribunal invited submissions from the parties in response to the Notice.

5The applicant sent an email in which he accused the Tribunal of accepting lies and nonsense as legal. He claimed that the Tribunal was “joining the party” in treating his Application like a game of ping pong.

6The respondent also opposed deferral on the basis that the issue in the applicant’s OLRB appeal is different than the discrimination claims raised in his Application.

DECISION AND ANALYSIS

7The Tribunal may defer consideration of an application on such terms as it may determine (Rule 14.1 of the Rules of Procedure). Deferral of an application ensures that legal processes dealing with the same issues do not run concurrently. It is not automatically invoked simply because the parties are involved in other legal processes, but is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case.

8Some 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 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.

9In my view deferral is appropriate in the circumstances of this case. I understand that the applicant’s ESA appeal is centered on the issue of whether the applicant’s employer contravened the ESA. However, there is significant overlap between this Application and the applicant’s ESA appeal. The applicant’s central claim in this Application is that the ESO discriminated against him by issuing a decision that is “full of blatant lies and sheer nonsense”. In order to assess this claim, this Tribunal would have to determine whether the ESO’s decision was in fact full of lies and nonsense, as alleged. This claim also forms the backdrop of the applicant’s appeal to the OLRB. Also, one of the remedies the applicant seeks in his Application is for the ESO’s decision to be set aside and a new decision rendered. The applicant is seeking in essence the same remedy before the OLRB. Moreover, and in any event, this Tribunal does not have the jurisdiction to sit in review of the ESO’s decision and to set it aside.

10For all these reasons, I find there is significant overlap between this Application and the applicant’s appeal before the OLRB. As such, there is a significant risk of inconsistent findings if both were to proceed concurrently. It is unfortunate that the applicant may see this deferral as a game of ping pong. In fact, the deferral is aimed at ensuring the appropriate use of legal resources in a situation where an applicant has filed multiple overlapping claims.

ORDER

11For the reasons set out above, the Tribunal will defer consideration of this Application pending the outcome of the applicant’s appeal to the OLRB.

[12] The parties should take note that if they wish to proceed with the Application at the conclusion of the OLRB proceeding, they must make a Request for an Order During Proceedings within 60 days after the conclusion of the OLRB proceeding (Rules 14.3 and 14.4).

13I am not seized of this matter.