Wellington v. Southern Sanitation Inc., 2016 HRTO 722

Human Rights Tribunal of Ontario

Between:

Terry-Ann Wellington Applicant

-and-

Southern Sanitation Inc. o/a Wasteco Respondent

Interim Decision

Adjudicator: Jay Sengupta Date: May 26, 2016 Citation: 2016 HRTO 722 Indexed as: Wellington v. Southern Sanitation Inc.

Written Submissions

Terry-Ann Wellington, Applicant Self-represented

Southern Sanitation Inc., Respondent Matthew Dewar, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The matter was scheduled to proceed to a hearing on November 18, 2015. As there were exceptional circumstances warranting it, the hearing date was adjourned.

2Just prior to the hearing date, the respondent filed a Request for Order seeking deferral of the Application on the basis that it had just come to the attention of the respondent, the applicant's former employer, that the applicant had launched a civil action in the Superior Court of Justice against Great-West Life Assurance Company (the "insurance company") with respect to the denial of her long-term disability benefits claim. The respondent provided a copy of the applicant's Statement of Claim, filed on January 28, 2015, against the insurance company as well as the Statement of Defence filed by the insurance company on April 2, 2015.

3The applicant opposed deferral as the respondent is not party to the civil litigation which is only against her disability insurer and, she submits, the civil claim does not address her human rights concerns.

Deferral

4The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

5The Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to the facts or issues raised in the application. See Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280. However, deferral is not automatically indicated simply because there are other legal proceedings involving some of the parties. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

6Factors that have been identified as 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 and the steps that have been taken to pursue them. See Klein v. Toronto Zionist Council, 2008 HRTO 189, and Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7Based on the materials filed by the parties, I find the overlap between this Application and the applicant's lawsuit against the insurance company is insufficient to warrant deferral. The responding party to this Application is different than the defendant in the civil matter. While the factual background giving rise to the applicant's alleged disability may be relevant to both proceedings, there is little duplication of the allegations and no alleged violation of the Code in the civil claim. The legal issues regarding long-term disability eligibility which are in dispute in the civil matter are clearly distinct from the legal issues raised in the human rights proceeding, which focus on allegations of discrimination by the respondent employer.

8In my view, there are insufficient grounds to justify deferral. The civil action appears to be in the early stages and timeframe for conclusion is undetermined. This militates against deferral. Although the two proceedings may move concurrently, there is little relationship or overlap of legal issues in the two proceedings. I appreciate the respondent's concern that the outcome of the civil action may have some bearing on the issue of income compensation. The Tribunal can address any potential for double recovery if liability is established and remedy becomes an issue. In addition, in advance of a hearing, the applicant will be required to provide all arguably relevant documents in her possession including any information from the civil proceedings that meets the test of arguable relevance. As such, I am of the opinion that a deferral is not appropriate in this case.

9Accordingly, the respondent's request to defer is denied.