Chandrasekera v. Holiday Inn Hotel, Airport East, 2016 HRTO 481

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bellanage Chandrasekera Applicant

-and-

Holiday Inn Hotel, Airport East and Thay Tjie Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: April 14, 2016

Citation: 2016 HRTO 481

Indexed as: Chandrasekera v. Holiday Inn Hotel, Airport East

WRITTEN SUBMISSIONS

Bellanage Chandrasekera, Applicant Self-represented

Holiday Inn Hotel, Airport East and Thay Tjie, Respondents Daniel Fogel, Counsel

1This Interim decision concerns whether the Tribunal should defer an Application filed under section 34 of the Human rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”). The applicant filed his Application on December 30, 2015 alleging discrimination in employment on the ground of race, ethnic origin and reprisal or threat of reprisal. The applicant alleges, inter alia, that his employment was terminated July 20, 2015 because he is Sinhalese.

2The applicant advised that he filed a claim under the Employment Standards Act, 2000, S.O. 2000, c.41 as amended (“ESA”) based on the facts in his Application. A copy of the ESA claim, dated September 9, 2015, is attached to his Application.

3The Tribunal sent a Notice of Intent to Defer (“NOID”) on February 26, 2016. Both the applicant and the respondent filed written submissions in response to the NOID.

decision and analysis

4This 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 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.

5Some of the factors that may be relevant in deciding whether to defer consideration of the 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.

6In the circumstances of this case, I find that deferral is appropriate. While the issues in each proceeding are not identical, there is a clear overlap between the issues raised in the two proceedings. For example, the subject matter of the two proceedings is substantially similar. In his application, the applicant alleges that he experienced discrimination in his “rate of pay, overtime, hours of work, or holiday”. In his ESA complaint, the applicant claims unpaid wages as well as overtime, vacation and public holiday pay. Similarly, the Application seeks damages for “unfair and wrongful dismissal” while the ESA complaint makes an identical claim for “unfair and wrongful dismissal”. There is a risk that proceeding concurrently could result in inconsistent findings.

7In my view, the most fair and expeditious approach is for the Tribunal to exercise its discretion to defer the Application pending the outcome of the applicant’s ESA claim.

8Consequently, the Application will be deferred pending the outcome of the applicant’s ESA claim.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the applicant’s claim under the ESA has been concluded.

10I am not seized of this matter.