Provost v. Penny Doncaster Occupational Therapy Services, 2016 HRTO 1029

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lacey Provost

Applicant

-and-

Penny Doncaster Occupational Therapy Services

Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: August 3, 2016

Citation: 2016 HRTO 1029

Indexed as: Provost v. Penny Doncaster Occupational Therapy Services

WRITTEN SUBMISSIONS

Lacey Provost, Applicant

Self-represented

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related Ministry of Labour (“MOL”) proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a MOL proceeding that is still in progress. Specifically, the applicant filed a claim against the respondent in April, 2016 alleging a contravention of the Employment Standards Act, 2000, S. 2000, c.41 (“ESA”). The applicant filed a copy of the ESA claim with her Application.

3On July 8, 2016, the Tribunal issued a Notice of Intent to Defer to the parties pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal directed the applicant to file submissions on the possible deferral of her Application by August 8, 2016. The applicant opposes the deferral essentially on the grounds that the ESA claim can take months.

decision

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative. The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure 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 complaints of discrimination brought before it.

5The Tribunal has generally deferred applications where there is an ongoing proceeding based on the same facts and human rights issues. The Tribunal considers factors such as the subject matter of the other proceeding, the nature of the other proceeding, the types 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. See Baghdasserians v, 67449 Ontario, 2008 HRTO 404.

6The Tribunal has deferred applications where there are ongoing ESA claims with facts and issues that overlap with the subject matter of the Application. See Hahnfeld v. Nacora Insurance Brokers, 2014 HRTO 1161, Irwin v. HMV Canada, 2013 HRTO 151, Dela Merced v. Tagg Industries, 2016 HRTO 555.

7I find deferral of the Application to the ESA process appropriate. I have reviewed the MOL claim submitted by the applicant and it appears the factual basis for both proceedings are the same. There is substantial overlap in the subject matter of the proceedings which both relate to allegations surrounding the application’s termination. I therefore find that there is a significant risk of inconsistent findings if the two matters were to proceed concurrently.

8The Application will therefore be deferred pending the completion of the MOL proceeding.

9I acknowledge that the applicant expressed concerns about the possible delay in the MOL proceeding. These concerns cannot override the significant administration of justice considerations that need to be balanced when a claimant has begun concurrent proceedings raising the same factual issues.

10If the applicant believes, on conclusion of the MOL process, that any human rights issues have not been adequately addressed, she may ask to have her Application brought back before the Tribunal.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the other process. Where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.

12I am not seized.