Foger v. Humber Property Management, 2015 HRTO 271

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Granville Foger

Applicant

-and-

Humber Property Management

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 6, 2015

Citation: 2015 HRTO 271

Indexed as: Foger v. Humber Property Management

WRITTEN SUBMISSIONS

Granville Foger, Applicant

Anita Balakrishna, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and occupation of accommodation because of race, colour, ethnic origin and reprisal. The applicant alleges that he was subject to differential treatment during his employment because of his race, colour and ethnic origin and that the termination of his employment also amounted to discrimination contrary to the Code.

Background

2In a Case Assessment Direction dated February 12, 2015 noted as follows at paragraphs 3-5:

In a Case Assessment Direction (“CAD”) dated August 21, 2014, the Tribunal declined to defer the Application pending the conclusion of the applicant’s claim with the Ministry of Labour pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”). The Tribunal concluded that the ESA claim was not at a more advanced stage than this Application and would not address the human rights claims included in the Application.

Since the Tribunal issued that CAD, however, an Employment Standards Officer (“ESO”) concluded the investigation of the ESA claim. The ESO found amongst other things, that the respondent terminated the applicant’s employment because the applicant committed acts of wilful conduct. The applicant has filed an application with the Ontario Labour Relations Board (“OLRB”) to review the ESO’s conclusion regarding the termination of the applicant’s employment. Consequently it is clear that the applicant’s ESA claim is now at a more advanced stage than this Application, which the Tribunal has not yet scheduled for hearing. The OLRB shall determine the issue of whether the applicant was dismissed for wilful misconduct and in my view deferral is appropriate to avoid the possibility of conflicting findings of fact on the issue of the termination of the applicant’s conduct.

Consequently, it is the Tribunal’s intention to defer this Application pending the conclusion of the OLRB proceeding. The parties may file with the Tribunal and deliver to each other submissions regarding whether the Application should be deferred within 14 days of this CAD.

3The applicant filed written submissions opposing deferral on February 26, 2015. The respondent did not file submissions and the time for doing so has passed. In summary, the applicant submitted that although the claim under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”) and this Application are based on similar incidents and facts, the applicant seeks different remedies in each proceeding and the human rights issues involved were not addressed by the ESO. The applicant acknowledged that the termination of the applicant’s employment is an issue in both proceedings, but submitted that, in the circumstances, the potential overlap of relevant facts and issues is minimal.

Analysis and Decision

4The 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.

5The ESA does not expressly incorporate the Code or give decision makers authority to resolve human rights issues. However, the Supreme Court of Canada has found that statutory tribunals that are empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the Code to a matter properly in front of them (Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14). It is not clear if this applies to a decision of an Employment Standards Officer although it would clearly apply to the Ontario Labour Relations Board (OLRB) which hears appeals under the ESA from decisions of an Employment Standards Officer.

6The termination of the applicant’s employment is a central issue in this Application and is also an 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. This is my view is a significant overlap of facts and issues, which raises the possibility of inconsistent findings if the two matters proceed concurrently. As noted above, the applicant’s ESA claim is also at a more advanced stage than this Application

7In light of these considerations, I am satisfied that the Application should be deferred until the OLRB proceeding has been concluded. The Tribunal’s Rule 14 sets out the procedure to follow if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.

8I am not seized.