Shelby Burns v. Midas (Newmarket & Keswick) and Donald Scott, 2015 HRTO 1649

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shelby Burns

Applicant

-and-

Midas (Newmarket & Keswick) and Donald Scott

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: December 4, 2015

Citation: 2015 HRTO 1649

Indexed as: Burns v. Midas (Newmarket & Keswick)

WRITTEN SUBMISSIONS

Shelby Burns, Applicant

Self-represented

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred.

2The applicant filed an Application alleging that the respondents discriminated against her in her employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

3In addition to filing her Application, the applicant filed a claim for termination pay, severance pay and reprisal under the Employment Standards Act, 2000 (the “ESA”).

4On October 16, 2015, the Tribunal delivered the Application to the respondents together with a Notice of Intent to Defer. The Tribunal advised the parties that it may be appropriate to defer consideration of the Application pending resolution of the other proceeding (the ESA claim). The parties were asked to provide submissions on the proposed deferral by November 16, 2015.

5The applicant provided submissions on the proposed deferral on November 11 and 16, 2015. The applicant opposes deferral of the Application.

6The respondents did not provide submissions on the deferral.

7On November 24, 2015, the applicant provided a copy of the decision of the Employment Standards Officer released on November 16, 2015. The ESA determined the applicant was entitled to termination pay but not severance pay. The applicant’s reprisal claim was denied.

Decision

8The 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 of the Tribunal’s Rules of Procedure). Deferral of an Application is granted for a specific reason - to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

9The Tribunal regularly defers consideration of applications where there is another proceeding filed on behalf of an applicant which raises substantially the same facts and issues as the application. However, this is only the case if the other proceeding is active and ongoing. It is only in such cases that there is a risk of proceedings running concurrently with the attendant risk of inconsistent decisions on facts or law.

10In this case, the decision of the ESA has been released. There is no indication that the decision is under appeal. As such, there does not appear to be another proceeding to defer to. In these circumstances, I do not find it appropriate to defer consideration of this Application.

ORDER

11For the reasons set out above, the Tribunal will not defer consideration of this Application. This determination is made without prejudice to a party’s right to request deferral in the future if the status of the applicant’s ESA claim changes.

12The respondents must deliver their Response to the Application within 35 days of the date of this Interim Decision.

13I am not seized of this matter.