HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Seto Soo-Hoo

Applicant

-and-

Drakkar & Partners Inc.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: August 11, 2016

Citation: 2016 HRTO 1065

Indexed as: Seto Soo-Hoo v. Drakkar & Partners Inc.

WRITTEN SUBMISSIONS

Peter Seto Soo-Hoo, Applicant

Self-represented

Drakkar & Partners Inc., Respondent

Matthew Curtis, Counsel

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of another legal proceeding.

2The applicant is employed by the respondent. On March 13, 2015, the applicant was allegedly injured at work. A claim was subsequently filed with the Workplace Safety and Insurance Board (“WSIB”).

3On January 12, 2016, the applicant also filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his disability.

4On February 25, 2016, the respondent filed a Response, which denied the allegation of discrimination, and requested that the Tribunal defer consideration of the Application pending the conclusion of the proceeding before the WSIB and any related appeals.

5On June 2, 2016, the applicant filed a letter, which admitted that he has requested reconsideration of a WSIB decision, but opposed the deferral of his Application.

6Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

8Where there are concurrent proceedings before both the WSIB and the Tribunal that deal with the same issues, the Tribunal will normally defer consideration of the Application. See, for example, Gibson v. Arc Resources Canada, 2009 HRTO 624; Mahjour v. Joe Singer Shoes, 2010 HRTO 1053; Dhunsi v. J.T. Bakeries, 2010 HRTO 540; Hussey v. Crossby Dewar Inc., 2012 HRTO 618; and Purchase v. Burlington (City), 2012 HRTO 1648. In Dhunsi, above, the Tribunal deferred the Application on the basis that there was a clear overlap between the issues before the Tribunal and the matter under appeal before the WSIB. In assessing the issue of deferral, the Tribunal considered it relevant that the WSIB has significant expertise in addressing issues of disability.

9In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. The applicant’s claim before the WSIB, which is ongoing, was filed several months before he filed his Application with this Tribunal, and is at a more advanced stage. Furthermore, although the issues in the two proceedings may not be not identical, there is a clear overlap between some of the key facts and issues, which raises the potential for duplication of evidence, and the possibility of inconsistent findings of fact and law.

10As an aside, I have noted that the respondent appears to be federally incorporated, and employed the applicant as a highway truck driver. This possibly raises an additional preliminary issue: whether the applicant’s human rights claim falls under federal jurisdiction rather than provincial jurisdiction, and whether he should have filed a complaint with the Canadian Human Rights Commission rather than this Tribunal. In view of the fact that the applicant is self-represented, he should seek legal advice about this matter. The Tribunal will deal with the jurisdiction issue, if necessary, if and when the Application is reactivated.

11The Tribunal makes the following order and direction:

1) The Application is deferred pending the conclusion of the proceeding before the WSIB and any related appeals to the Workplace Safety and Insurance Appeals Tribunal.

2) Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, 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 and Forms can be found on its website.

12I am not seized of this matter.