Amabel Dela Merced v. Tagg Industries and Victor Mosquera, 2016 HRTO 555

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amabel Dela Merced

Applicant

-and-

Tagg Industries and Victor Mosquera

Respondents

INTERIM DECISION

Adjudicator: Jennifer Khurana

Date: April 27, 2016

Citation: 2016 HRTO 555

Indexed as: Dela Merced v. Tagg Industries

WRITTEN SUBMISSIONS

Amabel Dela Merced, Applicant

Self-represented

Introduction

1This is an Application filed on December 14, 2015, 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, gender identity and record of offences. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related Ministry of Labour (“MOL”) proceeding.

2The applicant filed a claim with the Ministry of Labour against the corporate respondent alleging a contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). The applicant provided a copy of the ESA claim dated November 22, 2015 with her Application.

3On March 16, 2016, the Tribunal issued a Notice of Intent to Defer to the parties pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal directed the applicant to file submissions on the possible deferral of her Application by April 15, 2016. The applicant opposes the deferral on the grounds that she will experience financial hardship if her Application is deferred and also submits that there is no “vivid” connection between the two proceedings.

DECISION

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative. 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.

5The Tribunal has generally deferred applications where there is an ongoing proceeding based on the same facts and human rights issues. The Tribunal considers factors such as 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. See Baghdasserians v. 67449 Ontario, 2008 HRTO 404.

6The Tribunal has deferred applications where there are ongoing ESA claims with facts and issues that overlap with the subject matter of the Application. See Hahnfeld v. Nacora Insurance Brokers, 2014 HRTO 1161, 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.

7I find deferral of the Application to the ESA process appropriate. I have reviewed the MOL claim submitted by the applicant and it appears the factual basis for both proceedings are the same. There is substantial overlap in the subject matter of the proceedings which both relate to allegations surrounding the applicant’s termination. I therefore find that there is a significant risk of inconsistent findings if the two matters were to proceed concurrently.

8The Application will therefore be deferred pending the completion of the MOL proceeding.

9I acknowledge that the applicant has expressed concerns about delay and financial hardship she continues to experience. These concerns cannot override the significant administration of justice considerations that need to be balanced when a claimant has begun concurrent proceedings raising the same factual issues.

10If the applicant believes, on conclusion of the MOL process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the other process. Where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.

12I am not seized.