Worden v. Ryan ULC, 2016 HRTO 1256

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diane Worden

Applicant

-and-

Ryan ULC

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: September 27, 2016
Citation: 2016 HRTO 1256
Indexed as: Worden v. Ryan ULC

WRITTEN SUBMISSIONS

Diane Worden, Applicant
Simon Heath, Counsel

Ryan ULC, Respondent
Andrew Bratt, Counsel

Introduction

1This is an Application filed on April 21, 2016 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of family and marital status. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a civil court action.

Respondent’s Position on Deferral

2The respondent states that the applicant commenced a court action on May 13, 2016 that deals with the same facts as this Application. It requests the Application be deferred pending resolution of the civil court action (“court action”).

3The respondent submits the applicant claims damages in the court action for negligent misrepresentation, wrongful dismissal and unpaid commissions arising out of the respondent’s termination of her employment. It further submits the court action and this Application involve similar allegations of discrimination and reprisal.

4The respondent sets out the common facts in both proceedings. It submits even if the legal issues and the remedies sought in both proceedings are somewhat different, if the Tribunal does not defer the Application, there is a real and substantial risk of inconsistent findings of facts and law. In addition, the respondent will have to expend considerable and unnecessary resources defending the allegations in both forums.

5The respondent submits the Tribunal has held there is a public interest in avoiding the duplication of adjudicative proceedings and deciding some or all of the same issues. Even where two distinct legal issues lead to distinct legal remedies, they may rely on interrelated or even identical facts. In such cases, it is appropriate for the Tribunal to defer the Application.

The Applicant’s Position

6The applicant argues in the Application she seeks damages for discrimination, reprisal and lost wages, and in the court action damages for negligent misrepresentation during the pre-employment phase, and for unpaid commissions. She argues because there is no overlap in the remedies sought, this will minimize the chance of inconsistent findings of fact. In addition, because the court action just began, there is no chance at this stage that there will be inconsistent findings of fact.

7The applicant submits the Application could be concluded before the court action, particularly if the parties can mediate at the Tribunal before a decision is made on deferral.

DECISION AND ANALYSIS

8This Application is deferred pending resolution of the court action.

9The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (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 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.

10The Tribunal has applied its discretion where there are parallel legal proceedings between the parties: s. 45 of the Code. 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. 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 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, e.g. Klein v. Toronto Zionist Council, 2008 HRTO 189 and Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

11On balance, and even though the court action is at an early stage, I find deferral appropriate in this case. Although the legal issues are somewhat different, the facts underlying those issues are the same. In my view, deferral is appropriate due to the factual overlap which means there is a significant potential for duplication of evidence and inconsistent findings in the two proceedings. The Court will have to decide why the applicant was terminated, which may well involve a consideration of the facts set out in the Application.

12If, after the court action is concluded, a party wishes to proceed with the Application, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days of the conclusion of the court action (Rules 14.3 and 14.4).

order

13For the reasons set out above, this Application is deferred pending the conclusion of the court action.

14I am not seized of this matter.