Nazareth v. Burnac Produce Limited and Doreen Ng, 2016 HRTO 364

Human Rights Tribunal of Ontario

B E T W E E N:

Deborah Nazareth Applicant

-and-

Burnac Produce Limited and Doreen Ng Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren Date: March 22, 2016 Citation: 2016 HRTO 364 Indexed as: Nazareth v Burnac Produce Limited and Doreen Ng

WRITTEN SUBMISSIONS

Deborah Nazareth, Applicant Self-represented

Burnac Produce Limited and Doreen Ng, Respondents Landon Young, Counsel

1This Interim Decision addresses the respondent’s request to defer this Application pending a determination of the applicant’s claim under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

2In her Application, the applicant alleges that the respondent discriminated against her on a number of grounds, contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). In particular, she alleges that her race and disability were factors in the respondent’s decision to terminate her employment.

3In addition to filing her Application, the applicant also filed a claim under the ESA for termination pay, severance pay, and vacation pay. The applicant alleges that she experienced reprisal. An Employment Standards Officer (“ESO”) found that the applicant was owed $58.38 in vacation pay and the respondent agreed to pay this amount. The ESO dismissed the remainder of the applicant’s ESA claims.

4The ESO determined that the applicant had been terminated for cause and not as reprisal for attempting to enforce her rights.

5The applicant has applied for a review of the ESO’s decision by the Ontario Labour Relations Board (“OLRB” or “Board”). In her application for review, the applicant submitted that her disability was a factor in the respondent’s decision to terminate her and that she had not been allowed to take sick days when she needed them.

6The OLRB proceeding is ongoing. Two days of hearing have been completed and it is scheduled to continue on May 3, 2016.

7The respondent has requested that this Application be deferred pending the outcome of the review before the OLRB. The respondent submits that there is much factual overlap between the ESA claim and this Application and that the remedies that the OLRB could award could overlap with the remedies that could potentially be awarded in this Application.

8The applicant opposed deferral on the basis that the two proceedings address different legal issues.

9The Tribunal may defer consideration of an application on such terms as it may determine (Rule 14.1 of the Rules of Procedure). Deferral of an application ensures that legal processes dealing with the same issues do not run concurrently. It is not automatically invoked simply because the parties are involved in other legal processes, but is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case.

10Some 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.

11The termination of the applicant’s employment is a central issue in this Application and it is also a central issue before the OLRB. In particular, whether the applicant’s alleged misconduct was the reason for her dismissal, as the respondent contends and the ESO found, will be before both the Tribunal and the OLRB.

12I find there is significant overlap between this Application and the applicant’s appeal before the OLRB. As such, there is a significant risk of inconsistent findings if both were to proceed concurrently. The deferral is aimed at ensuring the appropriate use of legal resources in a situation where an applicant has filed overlapping claims.

13In light of these considerations, I am satisfied that the Application should be deferred until the OLRB proceeding has concluded.

14The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance proceedings. It should be noted that, if either party wishes to proceed with this Application at the conclusion of the OLRB proceeding, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the OLRB proceeding (Rules 14.3 and 14.4).

Order

15For the reasons set out above, the Tribunal will defer consideration of this Application pending the outcome of the applicant’s review before the OLRB.

16The hearing of this Application scheduled for April 8, 2016 is cancelled.