West v. Yogen Fruz Canada Inc., 2016 HRTO 777

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cari-An West Applicant

-and-

Yogen Fruz Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: June 7, 2016

Citation: 2016 HRTO 777

Indexed as: West v. Yogen Fruz Canada Inc.

WRITTEN SUBMISSIONS

Cari-An West, Applicant Allan M. Kaufman, Counsel

Yogen Fruz Canada Inc., Respondent Jonathan M. Keslassy, Counsel

Introduction

1This is an Application filed on March 8, 2016 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. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a civil court action.

2The applicant indicates in the Application that the facts of the Application are part of a court action that is still in progress, but is not asking the Tribunal to postpone the Application pending its completion.

3The Tribunal issued a Notice of Intent to Defer (“NOID”) on April 27, 2016, seeking submissions from the parties about whether it would be appropriate to defer the consideration of the Application pending the resolution of the civil court action. The Tribunal directed the parties to file submissions addressing this issue and stated that the respondent was not required, at this point, to file a Response. The applicant and respondent filed submissions.

4The applicant submits the 2014 civil court action pertains to the injuries she sustained in a motorcycle accident in the respondent’s parking lot, and does not overlap with the Application as it includes no claims for any Code violations. The civil court proceeding predates this Application. When it was filed the applicant had not been terminated from her employment, which precipitated this Application. The applicant submits there is no prejudice to the respondent in allowing the Application to proceed.

5The respondent submits there is substantial overlap between the facts and allegations in the civil court proceeding and the Application, and deferral of this Application is appropriate. The respondent submits they both refer to a common incident and seek similar damages. The respondent submits that if the Application is deferred, it would avoid the possibility of inconsistent findings and decisions in the event the court determines the applicant does not suffer from significant injuries or from a disability. In addition, it would eliminate the potential for double recovery.

6The respondent submits that the examinations for discovery are scheduled for June 28, 2016, following which there will be mediation.

ANALYSIS

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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.

8The Tribunal has applied its discretion where there are parallel legal proceedings between the parties: s. 45 of the Code. 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. 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 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.

9On balance, I find that deferral is not appropriate in this case. The legal issues in this case are distinct. The Application raises the issue of whether the respondent discriminated against the applicant because of disability. The issue in the civil proceeding is whether the respondent was negligent and liable for the injuries the applicant sustained in a motorcycle accident on its property. While there may potentially be some overlap in the factual background between the Application and the civil claim the civil proceeding raises no issues with respect to discrimination on the basis of disability and the termination of her employment on that basis. There is no significant risk of inconsistent decisions of fact or law in this case. On balance, I do not think it would be fair overall to the parties to defer consideration of this Application pending the outcome of the civil court proceeding, which already has been underway for two years and is just reaching the stage of examinations for discovery.

10It is not appropriate to defer the Application pending conclusion of the civil court proceeding.

ORDER

11The respondent’s request for deferral is denied.

12I am not seized of this matter.