Nishantha Fernando v. FedEx Trade Networks Transport & Brokerage (Canada) Inc., 2016 HRTO 1625

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nishantha Fernando Applicant

-and-

FedEx Trade Networks Transport & Brokerage (Canada) Inc. Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: December 19, 2016 Citation: 2016 HRTO 1625 Indexed as: Fernando v. FedEx Trade Networks Transport & Brokerage (Cnanda) Inc.

WRITTEN SUBMISSIONS

Nishantha Fernando, Applicant Self-represented

FedEx Networks Transport and Brokerage (Canada) Inc., Respondent Tamara Ticoll, Counsel

1This Application alleges discrimination with respect to employment because of colour, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application is about the respondent’s failure to accommodate the applicant in the workplace and his termination.

2After commencing his Application, the applicant filed a statement of claim in Ontario’s Superior Court of Justice (“the civil matter”).

3The Tribunal directed the parties to file submissions about the applicability of section 34(11) of the Code, and, once those were received, about deferring the Application pending conclusion of the civil matter.

4The parties filed their submissions.

5For the reasons set out below, the Application is deferred pending conclusion of the civil matter.

DEFERRAL OF THE APPLICATION

6Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. The Tribunal has the jurisdiction to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. However, the Tribunal has generally deferred applications where there is an ongoing proceeding involving many of the same underlying facts and/or issues.

7Deferral is ordered to avoid adjudicative duplication and inconsistent results. As well, it should be noted that the Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights issues. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14. Where parties are engaged in a concurrent legal proceeding in which they are raising many of the same issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such circumstances, the Tribunal will generally order the deferral of the application.

8In addition, section 34(11) of the Code bars an applicant from proceeding with an application where he or she has filed a civil proceeding seeking remedies under section 46.1 of the Code.

9While the civil matter does not seek remedies specific to the Code, the applicant does raise Code issues in his allegations of the respondent’s failure to accommodate him and his subsequent termination and submits that circumstances, as well as a number of others, should be considered in awarding him the specific notice period for which he is claiming entitlement.

10Accordingly, in my view, deferral is appropriate to this case due to the overlaps in facts and issues between the civil matter and the Application. The Application is deferred pending the conclusion of the civil matter and any related appeals.

11It should be noted that when a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure within 60 days after the conclusion of the other proceeding.

ORDER

12For the reasons set out above, this Application is deferred pending the conclusion of the civil matter in the Superior Court of Justice and any related appeals.

13I am not seized with this matter.