Paula Rocha v. Centro Mortgage Inc. and Ildina Galati, 2016 HRTO 1456

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Rocha Applicant

-and-

Centro Mortgage Inc. and Ildina Galati Respondents

INTERIM DECISION

Adjudicator: Bruce Best Date: November 10, 2016 Citation: 2016 HRTO 1456 Indexed as: Rocha v. Centro Mortgage Inc.

WRITTEN SUBMISSIONS

Paula Rocha, Applicant Daniel Yudashkin, Counsel

Centro Mortgage Inc. and Ildina Galati, Respondents Matthew R. Villa, Counsel

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").

2The applicant indicated that she had also brought a Small Claims' Court action for wrongful dismissal arising out of the termination of her employment. The Tribunal issued a Notice of Intent to Defer ("Notice") on September 19, 2016, and sought submissions from the parties on whether the Application should be deferred under Rule 14 of the Tribunal's Rules of Procedure pending the resolution of the civil action.

3The respondents take the position that the Application should be deferred as the factual basis underlying both the action and the Application are the same.

4The applicant takes the position that the Tribunal and the court are not being asked to make determinations on the same issues. She argues that the allegations raised in the action that she was wrongfully or constructively dismissed are distinct from the allegations raised in the Application that she was subject to ongoing discrimination and harassment. The applicant also takes the position that the relief sought is different between the two proceedings. She further notes that the parties are different, as the individual respondent is not a party to the action.

Analysis and Decision

5In my view, the Application should be deferred pending the resolution of the action.

6In Swain v. MBM Intellectual Property Law LLP, 2015 HRTO 1011 at paras. 31-42, the Tribunal addressed when discretion to defer an application should be exercised. The question is the extent to which there is an overlap of issues between the proceedings.

7A central allegation in the Application is that the respondents refused to allow the applicant to return to work after a sick leave, which the applicant characterizes as "wrongful dismissal and discrimination based on medical disability." She further claims that the events leading up to the alleged wrongful dismissal "constitute a campaign of discriminatory and malicious conduct by the Respondents." She is claiming damages under the Code for injury to dignity, feelings and self-respect, mental anguish, and for other losses resulting from the allegedly discriminatory actions of the respondents.

8In the action, the applicant is claiming she was wrongfully dismissed, or that the respondents created a "poisoned work environment" which constituted constructive dismissal. She is also seeking bad faith, aggravated and punitive damages related to the manner in which she was treated leading up to her termination, including damages for intentional infliction of mental suffering.

9Though the legal basis for the claims may be different, the main issues which will have to be determined are essentially the same in both the Application and the action. Even though the individual respondent is not a defendant in the action, it appears that for the most part it is her actions or decisions, on behalf of the corporate respondent, which gave rise to the allegations in both proceedings. The evidence will be the same in both.

10There also may be an overlap in the remedies sought, between the applicant's claim for compensation under the Code, and her claim in the action for aggravated damages and damages for intentional infliction of mental suffering, all of which are compensatory damages. See Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 at para. 93.

11Another factor in favour of deferral is that the action is at a more advanced stage than the Application. A settlement conference has already been held, and the matter is apparently being set down for trial. See Klein v. Toronto Zionist Council, 2008 HRTO 189 at para. 12.

12In my view, the extent of the overlap between the issues and the remedies sought in the two proceedings, along with the fact that the action is at a more advanced stage, supports exercising discretion to defer the Application.

13The 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 if the issues are not otherwise resolved in the civil proceedings. 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/.

Delay and Abuse of Process

14The respondent has also raised the issue of delay with respect to some of the allegations, and also argues that the filing of the Application is an abuse of process.

15Given my decision to defer, these issues may be addressed should the Application be reactivated.

Order

16The application is deferred pending the resolution of the civil action.

17I am not seized.