Chandrasekera v. Shark Club Restaurant and Bar, 2015 HRTO 934

Human Rights Tribunal of Ontario

B E T W E E N:

Ballanage Chandrasekera Applicant

-and-

Shark Club Restaurant and Bar Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: July 15, 2015 Citation: 2015 HRTO 934 Indexed as: Chandrasekera v. Shark Club Restaurant and Bar

WRITTEN SUBMISSIONS

Ballenage Chandrawsekera, Applicant Anita Balakrishna, Counsel

Shark Club Restaurant and Bar, Respondent No submissions filed

1This Application alleges discrimination with respect to employment because of race, colour, place of origin, and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On May 6, 2015, the Tribunal issued a Notice of Intent to Defer on the basis that the applicant had filed an Employment Standards complaint with the Ministry of Labour ("the ESA complaint"). The Tribunal requested that the parties file submissions about the proposed deferral no later than June 6, 2015. The applicant has filed submissions, but the respondent has not and the time for doing so has elapsed.

3The applicant opposes deferral. He submits that although his Application and the ESA complaint are concurrent proceedings, the matters deal with separate issues, with minimal overlap, with little potential for conflicting findings of fact or law. His ESA complaint pertains to a variety of wage issues, including unpaid wages and termination pay, and working conditions, including eating periods. He submits that his ESA complaint does not make allegations of harassment or discrimination pursuant to the Code. He points out that his Application pertains to unfair and differential treatment by the organizational and individual respondent (whose last name is not provided on the Application), including the manner in which he was treated upon his termination.

decision

4Pursuant to Rule 14.1 of the Tribunal's Rules of Procedure, the 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. Deferral of an application ensures that proceedings dealing with the same or similar issues do not run concurrently, thereby raising the possibility of inconsistent decisions on fact or law. However, deferral is not automatic simply because the parties are engaged in another proceeding. In all cases, the Tribunal must consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

5In this case, I find that it is appropriate not to defer the Application.

6In reviewing the materials that the applicant filed in relation to his ESA complaint, which he provided to the Tribunal, I note that there are no allegations of harassment or discrimination against the respondent or individuals working at the respondent. The issues between the Application and the ESA complaint are separate, such that there will be little potential for conflicting findings of fact or law. To the extent that there is overlap between the remedies being sought in terms of loss of wages, this will only happen if the Application is upheld by the Tribunal and can be addressed by the hearing adjudicator.

7Accordingly, the Application will continue to proceed in the Tribunal's process.

8The respondent is directed to file, with the Tribunal, its Response to the Application within 35 days of the date of this Interim Decision. Upon receipt, the Tribunal will forward a copy to the applicant for Reply.

9I am not seized with this matter.