Tomm Peterdy v. The Corporation of the Town of Oakville, 2015 HRTO 789

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tomm Peterdy Applicant

-and-

The Corporation of the Town of Oakville Respondent

INTERIM DECISION

Adjudicator: Eli Fellman

Date: June 15, 2015

Citation: 2015 HRTO 789

Indexed as: Peterdy v. Oakville (Town)

WRITTEN SUBMISSIONS

Tomm Peterdy, Applicant John McLaughlin, Counsel

The Corporation of the Town of Oakville, Respondent Cheryl Ellison, 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”).

2On May 14, 2015, the Tribunal issued a Notice of Intent to Defer the Application pending the completion of a civil proceeding involving the parties to this Application.

3The parties provided written submissions in response to the Tribunal’s Notice of Intent to Defer.

4The respondent does not oppose deferral but does not offer any further explanation or reasons for this position.

5The applicant opposes deferral on the grounds that the factual underpinnings and the remedies sought in the two matters are different. The civil action concerns the alleged misconduct of the applicant’s co-worker and the alleged vicarious liability of the employer/respondent for that conduct. The Application alleges that, as a result of the misconduct by the co-worker, the applicant developed a disability and that the respondent failed to accommodate this disability.

6The Tribunal may defer consideration of an application, on such terms as it may determine (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 decision 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 claims of discrimination brought before it.

7Some 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: Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

8I am satisfied that the civil proceeding and the Application do not address the same allegations. The civil action does not raise human rights issues or include a claim for human rights remedies. The allegations in two proceedings are factually related in that the alleged misconduct described in the civil matter allegedly gave rise to the disability at issue in this Application. However, this is an insufficient reason to defer the Application. Any determination that the Superior Court may make regarding the respondent’s alleged vicarious liability for the misconduct of the applicant’s co-worker is unlikely to materially affect the Tribunal’s consideration of whether the respondent satisfied its obligation under the Code to accommodate the applicant’s disability. Thus, there appears to be relatively little risk of inconsistent findings of fact and law if the Tribunal proceeds with the Application in these circumstances.

9Further, it appears that the civil proceeding is still in its early stages. The applicant indicates that the respondent has not filed a defence in that matter and is seeking to be removed from that action.

10For the reasons set out above, the Application will not be deferred at this time. If it becomes apparent that there is a significant risk of overlapping legal issues and/or inconsistent legal or factual findings at a later stage, the respondent may request deferral at that time.

11The Tribunal’s Notice of Intent to Defer states that the respondent is not required to file a Response (Form 2) to the Application at this time. In light of the Tribunal’s decision not to defer the Application, the respondent is directed to file a Response within 35 days of the date of this Interim Decision.