Burns v. Midas (Newmarket & Keswick), 2016 HRTO 69

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shelby Burns

Applicant

-and-

Midas (Newmarket & Keswick) and Donald Scott

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: January 15, 2015 Citation: 2016 HRTO 69 Indexed as: Burns v. Midas (Newmarket & Keswick)

WRITTEN SUBMISSIONS

Midas (Newmarket & Keswick) and Donald Scott, Respondents

Paige Diebel, Representative

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred.

2The applicant filed an Application alleging that the respondents discriminated against her in her employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. In particular, the applicant alleges that she was subject to sexual harassment and sexual solicitation during her employment with the respondent.

3In addition to filing her Application, the applicant filed a claim for termination pay, severance pay and reprisal under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the "ESA").

4On October 16, 2015, the Tribunal delivered the Application to the respondents together with a Notice of Intent to Defer. The Tribunal advised the parties that it may be appropriate to defer consideration of the Application pending resolution of the other proceeding (the "ESA claim"). The parties were asked to provide submissions on the proposed deferral by November 16, 2015.

5The applicant provided submissions on the proposed deferral on November 11 and 16, 2015. The applicant opposes deferral of the Application.

6The respondents did not provide submissions on the deferral.

7On November 24, 2015, the applicant provided a copy of the decision of the Employment Standards Officer released on November 16, 2015 (the "ESA decision"), which determined the applicant was entitled to termination pay but not severance pay. The applicant's reprisal claim was denied.

8On December 4, 2015, the Tribunal issued an Interim Decision refusing to defer the Application because the ESA decision had been released and there was no indication the decision was under appeal. As such, there was other proceeding to defer to. This determination was made without prejudice to a party's right to request deferral in the future if the status of the applicant's ESA claim changed.

9On December 11, 2015, the respondents filed a Request for Order During Proceedings for a deferral of the Application because they had appealed the ESA decision. The respondents provided a copy of the appeal materials.

10The applicant did not respond to the respondents' deferral request.

Decision

11The 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.

12Some 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.

13This Application concerns allegations of sexual harassment and sexual solicitation. The Application does not involve the termination of the applicant's employment. While the applicant refers to reprisal in the Application, the alleged reprisal appears to relate to the filing of the ESA claim and not because of any assertion of her human rights. As such, the allegation of reprisal does not appear to be Code-related.

14In reviewing the materials provided by the respondent on the ESA appeal, it is clear that the issue in that appeal is the applicant's termination of employment.

15Given the lack of significant overlap between the issues raised in the Application and ESA claim/appeal, deferral of this Application to the ESA process is not appropriate. In my view, the risk of inconsistent results in the circumstances of this case is minimal. Therefore, the respondents' request for deferral is denied.

ORDER

16For the reasons set out above, the Tribunal will not defer consideration of this Application. The respondents must deliver their Response to the Application within 35 days of the date of this Interim Decision.

17I am not seized of this matter.