Jaswinder Ahluwalia v. Plastic Dress-Up Ltd., 2015 HRTO 1302

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jaswinder Ahluwalia

Applicant

-and-

Plastic Dress-Up Ltd.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: October 1, 2015

Citation: 2015 HRTO 1302

Indexed as: Ahluwalia v. Plastic Dress-Up Ltd.

WRITTEN SUBMISSIONS

Jaswinder Ahluwalia, Applicant

Nathaniel Onugha, Representative

Plastic Dress-Up Ltd., Respondent

Anthony Lungu, Counsel

Introduction

1This Interim Decision addresses the respondent’s request to either dismiss or defer this Application pending a determination of the applicant’s claim under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

2In his Application, the applicant alleges that the respondent discriminated against him because of age and disability, and reprised against him, contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). In particular, he alleges that that his age and/or disability were factors in the respondent’s decision to terminate his employment.

3In addition to filing his Application, the applicant also filed a claim under the ESA for termination pay, severance pay, leaves of absence and public holiday pay. An Employment Standards Officer (“ESO”) dismissed his ESA claims. Among other things, in her decision, the ESO found that the applicant was not entitled to termination pay because he was guilty of wilful neglect of duty. The applicant has applied for a review of the ESO’s decision by the Ontario Labour Relations Board (“OLRB” or “Board”). In his application for review, the applicant submitted that his age and disability were factors in the respondent’s decision to terminate him.

4The OLRB proceeding is ongoing. The Board held a consultation on July 13, 2015. By decision dated July 21, 2015, the OLRB made certain production orders. It stated that a hearing would be scheduled by the Board’s Registrar.

5In its Response to this Application, the respondent asked that the Tribunal either dismiss the Application due to the ESO’s decision or defer consideration of the Application pending the outcome of the review before the OLRB. The applicant opposed deferral on the basis that the two proceedings address different legal issues.

DECISION AND ANALYSIS

6I do not find it appropriate to dismiss the Application based on the ESO’s decision. This decision is not a final decision, as it is the subject of an application for review before the OLRB. However, for the reasons set out below I find it appropriate to defer consideration of the Application pending the outcome of the proceeding before the OLRB.

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.

9The termination of the applicant’s employment is a central issue in this Application and it is also a central issue before the OLRB. In particular, whether the applicant’s alleged misconduct was the reason for his dismissal, as the respondent contends and the ESO found, will be before both the Tribunal and the OLRB. Moreover, the applicant specifically alleged in his review application that his age and/or disability were factors in the termination of his employment. The OLRB will be called upon to address this allegation in its decision and it is also the main allegation raised in this Application. For these reasons, there is a significant overlap of facts and issues between this Application and the OLRB proceeding, which raises the possibility of inconsistent findings if the two matters proceed concurrently. Moreover, the OLRB proceeding is also at a more advanced stage than this Application.

10In light of these considerations, I am satisfied that the Application should be deferred until the OLRB proceeding has concluded.

11The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance proceedings. It should be noted that, if either party wishes to proceed with this Application at the conclusion of the OLRB proceeding, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the OLRB proceeding (Rules 14.3 and 14.4).

ORDER

12For the reasons set out above, The Tribunal will defer consideration of this Application pending the outcome of the applicant’s review before the OLRB.

1I am not seized.