Peck v. SHEA Capital Corporation, 2016 HRTO 1459

Kevin Peck

Applicant

-and-

SHEA Capital Corporation

Respondent

INTERIM DECISION

Adjudicator: Josée Bouchard Date: November 10, 2016 Citation: 2016 HRTO 1459 Indexed as: Peck v. SHEA Capital Corporation

WRITTEN SUBMISSIONS

Kevin Peck, Applicant Lauren Peer, Representative

SHEA Capital Corporation, Respondent Lior Samfiru, Counsel

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”), alleging discrimination with respect to employment on the basis of sex, family status and reprisal or threat of reprisal. This Interim Decision addresses the issue of whether the Application should be deferred pending the completion of a claim to the Ministry of Labour.

2The respondent filed a Request for an Order During Proceedings on September 14, 2016 requesting the deferral of the Application pending the outcome of a parallel claim under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). The respondent argues that the applicant is asking the Ministry of Labour (“MOL”) to determine the following:

determine that the applicant’s resignation was in fact a termination, as he was coerced into it;
determine that the applicant is owed amounts for outstanding wages and bonus;
determine that the respondent did not properly reinstate the applicant at the end of a parental leave;
determine that the respondent engaged in a reprisal against him for pursuing his legal rights with respect to the outstanding wages allegedly owed to him.

3The respondent submits that the applicant is also asking this Tribunal to determine that his employment was terminated, claiming in his Application that he was pressured and coerced into resigning. The respondent argues that the applicant is seeking the same relief from the Tribunal, claiming in his Application that his contractually owed bonus for 2015 was withheld. The respondent further notes that the third allegation is the same as the allegation made in the matter before this Tribunal. Finally, the respondent submits that the applicant is also requesting that this Tribunal determine whether the respondent engaged in a reprisal against him for pursuing his legal rights.

4The respondent maintains that the applicant is asking the MOL and the Tribunal to make determinations with respect to the very same issues and facts. The respondent argues that allowing this matter to proceed at this time would undermine the integrity of both administrative bodies, as well as the public interest in the finality of orders and decisions.

5On September 17, 2016, the applicant filed a Response to a Request for an Order opposing the request to defer. The applicant argues that the Application contains allegations that the respondent attempted to fault the employee for exercising a right to parental leave. The applicant maintains that the ESA does not address the issue of damages resulting from an employee exercising his right to parental leave. Also, he submits that there is no attempt to claim wages through both venues. The case with the MOL is for constructive dismissal and other violations, and the case before the Tribunal is for unpaid wages and remedies for suffering.

analysis and decision

6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal’s Rules of Procedure). 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.

7The Tribunal will generally defer an application where the parties are involved in another proceeding based on the facts or issues raised in the application. Some 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.

8The Tribunal has deferred applications where there are ongoing ESA claims with facts and issues that overlap with the subject matter of the Tribunal application. See, for example, Irwin v. HMV Canada, 2013 HRTO 151, Mounfield v. Cambridge Memorial Hospital, 2012 HRTO 1400, and Matechuk v. OLG at Thousand Islands, 2009 HRTO 324.

9While 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.

10I find that deferral is appropriate in the circumstances of this case. A review of the applicant’s ESA forms reveals that there is significant overlap between the Application narrative and the ESA claim. In fact the same issues and facts are raised in the MOL claim and the Application. In these circumstances there is a significant risk of inconsistent factual findings if the two matters were to proceed concurrently.

ORDER

11For the reason set out above, the Tribunal defers consideration of the Application pending the conclusion of the ESA process.

12Where a party wishes to proceed with an application that has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

13I am not seized.

Dated at Toronto, this 10th day of November, 2016.

“Signed By”

Josée Bouchard Vice-chair