HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gary Couch Applicant
-and-
TG Appliance Group Inc. Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Couch v. TG Appliance Group Inc.
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It was filed on April 12, 2016 and alleges that the applicant was terminated because of belligerent behaviour caused by his disability.
2In its Response, in addition to responding specifically to the applicant’s allegations, the respondent has requested that the Tribunal defer the Application because the applicant filed a complaint under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“the ESA complaint”), pertaining to the same issue. As part of its submissions, the respondent attached a letter from the Ministry of Labour (“the Ministry”) dated April 12, 2016 advising the respondent that it received the ESA complaint and requiring the respondent to file materials with the Ministry.
3On July 22, 2016, the Tribunal sent the Response to the applicant for Reply by August 12, 2016. It also requested that the applicant file submissions addressing the respondent’s request to defer.
4The applicant failed to file a Reply and the time for doing so is now passed.
DECISION
5Pursuant 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 issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
6The 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. The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts and order remedies that parallel the application: see Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280.
7While deferral is not automatic simply because the parties are engaged in another proceeding, deferral does not require that the other proceeding deal with precisely the same legal issues as raised in the human rights application. See for example, Christianson v. College of Physicians and Surgeons of Ontario, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330, and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.
8Some factors that have been identified as 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 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 and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
9In his Application, the applicant notes that the ESA complaint was filed at the same time as the Application. He indicates that the facts of the Application are part of another proceeding that is still in progress. He is seeking $8,500 in lost commissions through the ESA complaint, a remedy also sought in the Application.
10The respondent submits that the issue in both proceedings is whether the respondent had just cause to terminate the applicant’s employment and whether he is entitled to compensation for outstanding commissions at the time of termination. The respondent’s position is that the applicant’s employment was properly terminated for cause: namely, that the applicant’s repeated belligerent behaviour was in violation of the respondent’s workplace harassment and bullying policy. The central issue in both proceedings is whether the applicant’s belligerent behaviour was caused by his alleged disability.
11Tribunal decisions have deferred applications where there were on-going Ministry of Labour proceedings when the facts and issue raised in the ESA claims overlapped with the subject matter of the applications: see for example, Matechuk v. OLG at Thousand Islands, 2009 HRTO 324; Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448, and Ogbonna-Ehirim, above.
12It appears that the ESA complaint will be addressing the same facts and allegations as those raised in this Application. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the ESA proceeding before the Ministry of Labour and any related reviews or appeals.
13Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, where a party wishes to proceed with an Application that 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.
14I am not seized of this matter.
Dated at Toronto, this 23rd day of August, 2016.
“Signed By”
Josée Bouchard
Vice-chair