Cainamisir v. State Street Fund Services, 2015 HRTO 141

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Cainamisir Applicant

-and-

State Street Fund Services Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: January 29, 2015

Citation: 2015 HRTO 141

Indexed as: Cainamisir v. State Street Fund Services

WRITTEN SUBMISSIONS

Daniel Cainamiser, Applicant

Self-represented

State Street Fund Services, Respondent

Kristin Taylor, Counsel

1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In a Case Assessment Direction dated January 7, 2015 (“CAD”), the Tribunal directed the parties to provide an update about the following:

a. An update about the status of a proceeding filed under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”);

b. A copy of any Ontario Labour Relations Board (“OLRB”) decision that has been issued;

c. The date(s) upon which an OLRB hearing is scheduled to be held if no final decision has been issued; and,

d. Their positions on whether the Application should be deferred pending conclusion of the ESA proceeding if the ESA proceeding has not yet concluded.

3The parties have both filed submissions advising that there is an OLRB hearing scheduled for February 18, 2015 to hear the ESA proceeding. The respondent submits that deferral is appropriate given that the ESA proceeding is scheduled to be heard by the OLRB and there are overlapping issues between the ESA proceeding and the Application.

4The applicant opposes deferral and submits that the issues are distinct between the ESA proceeding and the Application.

analysis

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6Some 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 the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

7In this case, there appears to be an overlap between the facts covered by the Application and those being addressed in the ESA proceeding. The matter is still live and the ESA proceeding has not concluded. The OLRB hearing is scheduled for February 18, 2015. If the applicant believes, on the conclusion of the ESA process that his human rights issues have not been adequately addressed, he may ask to have his application brought back on before the Tribunal through re-activation.

8The Application will therefore be deferred pending the completion of the ESA proceeding, specifically until the OLRB has issued its decision.

9Pursuant 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 Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website at www.hrto.ca.

10If the Application is re-activated following the deferral, the Tribunal may also issue further directions about the preliminary issues identified in the CAD.

11I am not seized with this matter.