Xiasong Zhu v. Active Exhaust Corporation, 2015 HRTO 1314

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Xiasong Zhu

Applicant

-and-

Active Exhaust Corporation

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: October 5, 2015

Citation: 2015 HRTO 1314

Indexed as: Zhu v. Active Exhaust Corporation

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of a civil claim commenced by the applicant.

2In his Application, the applicant alleges that the respondent discriminated against him because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He asserts that this occurred in several ways: he was paid less because of his age; he was terminated after complaining about his lower wage; and he was replaced by younger employees, whom he trained, after they completed their probationary period.

3The applicant also filed a civil suit against the respondent in Small Claims Court. In his civil claim he alleges, amongst other things, that he was paid less than other employees; complained about his pay; trained new employees, who were younger than he was; and was terminated after their probationary period ended.

4The respondent filed a Response denying the allegations against it. It requests that the Tribunal defer the Application pending conclusion of the civil proceeding. It submits that the civil proceeding was scheduled for hearing in October 2015, but rescheduled due to the unavailability of counsel.

5In his Reply, the applicant opposes deferral. He submits that while there is some overlap in facts, his civil claim makes no allegations of discrimination, nor does it request any Code-related remedies. He submits that his civil claim is a wrongful dismissal action pertaining to notice.

deferral of the application

6Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. The Tribunal has the jurisdiction to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. However, the Tribunal has generally deferred applications where there is an ongoing proceeding involving many of the same underlying facts and/or issues.

7Deferral is ordered in order to avoid adjudicative duplication and inconsistent results. As well, it should be noted that the Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights issues. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14. Where parties are engaged in a concurrent legal proceeding in which they are raising many of the same issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such circumstances, the Tribunal will generally order the deferral of an application.

8In addition, section 34(11) of the Code bars an applicant from proceeding with an application where he or she has filed a civil proceeding seeking remedies under section 46.1 of the Code.

9In my view, deferral is appropriate in this case due to the overlap in the factual background to the applicant’s claims in each proceeding. Although the applicant has sought to characterize his claims differently in the Application compared with the civil claim (discrimination versus wrongful dismissal), the claims set out in his Application are substantially similar to those raised in the civil claim. Due to this overlap, there is a significant potential for duplication of evidence and inconsistent findings in the two proceedings.

10Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the civil proceeding before the Small Claims Court and any related appeals.

11It should be noted that, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rules 14.3 and 14.4 9 of the Tribunal’s Rules of Procedure within 60 days after the conclusion of the other proceeding.

order

12For the reasons set out above, this Application is deferred pending the conclusion of the Small Claims Court proceeding in this matter and any related appeals.

13I am not seized with this matter.