Witek v. Blue Streak Electronics Inc., 2015 HRTO 1490

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerzy Witek

Applicant

-and-

Blue Streak Electronics Inc.

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: November 4, 2015

Citation: 2015 HRTO 1490

Indexed as: Witek v. Blue Streak Electronics Inc.

WRITTEN SUBMISSIONS

Jerzy Witek, Applicant

Marvin Gorodensky, Counsel

Blue Streak Electronics Inc., Respondent

Jay Josepho, Counsel

1This Application, filed on July 31, 2015 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of age. Attached to the Application was a Statement of Claim between the parties that the applicant commenced pertaining to the termination of his employment (“the civil action”).

2On September 25, 2015, the Tribunal issued a Notice of Intent to Defer (“the Notice”) stating that it may be appropriate to defer the Application pending the resolution of the civil action. The Tribunal stated that the respondent was not required, at that time, to file a Response and provided an opportunity for the parties to provide submissions with respect to the deferral issue. Both parties provided submissions in response to the Notice.

3The respondent submitted that the applicant commenced the civil action on March 12, 2015, and that the respondent defended the civil action. The respondent submitted that the civil action proceeded to mediation, but was not settled. The respondent submitted that the Application should be deferred pending the outcome of the civil action because both proceedings address the same subject matter, i.e., the termination of the applicant’s employment, and both proceedings may address similar remedial issues. The respondent further submitted that the applicant has pleaded entitlement to punitive and aggravated damages, which invites the Court in the civil action to address other allegations beyond the issue of reasonable notice.

4The applicant submitted that the Application before the Tribunal concerns the issue of whether the applicant was dismissed, in whole or part, because of his age, whereas the civil action addresses the issue of whether the applicant is entitled to reasonable notice and other damages in respect of the termination of his employment. Accordingly, the applicant submitted that the two proceedings address different issues and that there is no factual overlap between the proceedings. As a result, there is little or no risk of conflicting findings of fact or law. The applicant also submitted that, to the extent there is a risk of overlap regarding remedies, the Tribunal and/or Court could take this risk into consideration in fashioning an award.

Analysis and Decision

5The 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 (Rule 14.1). 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. Some 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 type 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 Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

6The civil action is at a more advanced stage than the Application. The respondent has filed a Statement of Defence to the civil action and mediation has already taken place in that proceeding.

7I agree with the respondent that both the Application and the civil action concern the issue of the applicant’s termination, regarding which both the Court and the Tribunal will have to make findings. The civil action does not appear to allege that the applicant’s termination was discriminatory, but the Statement of Claim seeks general damages for wrongful dismissal and damages for breach of contract. The inclusion of these heads of damages indicates that the applicant’s claim in the civil action goes beyond a common law notice period. In my view, the factual and legal issues in these proceedings may well overlap, particularly with respect to remedy as the applicant appears to acknowledge.

8In these circumstances, I find it appropriate to defer consideration of this Application pending the conclusion of the civil action.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which the Application may be brought back on after the civil action has concluded.

10I am not seized.