Pimentel v. Angstrom Business Solutions, 2016 HRTO 453

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Filipe Pimentel Applicant

-and-

Angstrom Business Solutions Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: April 11, 2016 Citation: 2016 HRTO 453 Indexed as: Pimentel v. Angstrom Business Solutions

WRITTEN SUBMISSIONS

Filipe Pimentel, Applicant Wade Poziomka, Counsel

Angstrom Business Solutions, Respondent Gary Wojtan, Counsel

1This is an Application filed on November 17, 2015 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 disability. The applicant alleges that his pay, bonuses and commissions were reduced, and his employment constructively dismissed because of his disability. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related court proceeding for the most part related to the applicant’s allegedly unjust reduction to his commissions and bonuses.

2On March 3, 2016 the applicant requested to defer the hearing of this matter, which is scheduled for April 19 and 20, 2016. The respondent only filed its consent to the deferral on April 7, 2016.

Request to Defer

3The applicant seeks to defer the Application pending the conclusion of a civil action before the Ontario Superior Court of Justice commenced by the applicant against the respondent. The applicant submitted that, although the civil action addresses different legal issues, it is based on the same facts. The applicant also submitted that a portion of the remedy sought in the civil action overlaps with the remedy sought in the Application.

4Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. Deferral is ordered in order to avoid adjudicative duplication and inconsistent results, and the Tribunal has generally deferred applications where there is an ongoing proceeding involving many of the same underlying facts and/or issues.

5Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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 type 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 Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

6In my view, deferral is appropriate in this case due to the consent of the parties, and due to overlap in the factual background to the applicant’s claims in each proceeding, and the remedies sought. Due to this overlap, there is a significant potential for duplication of evidence and inconsistent findings in the two proceedings.

7Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the civil proceeding before the Superior Court of Justice and any related appeals.

8It should be noted that, where 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 Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

ORDER

9For the reasons set out above, this Application is deferred pending the conclusion of the Superior Court of Justice proceeding in this matter and any related appeals.

10The hearing scheduled for April 19 and 20, 2016 is cancelled.