Ingrid Gott v. IBM Canada Ltd., 2016 HRTO 833

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ingrid Gott

Applicant

-and-

IBM Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 21, 2016

Citation: 2016 HRTO 833

Indexed as: Gott v. IBM Canada Ltd.

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and alleges discrimination in employment because of disability and sex (gender). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of an outstanding civil proceeding.

2In her Application, the applicant provides information about her employment, with a focus on 2006 and 2007 and the conduct of her then manager, and makes a number of allegations from October 2015 against the respondent. She specifically submits that she seeks remedies arising from the factual situation from the October 2015 onwards, and provides the earlier allegations only as background. Post-October 2015, the applicant submits that she is ready to return to work, but the respondent refuses to return her to work, contrary to the Code.

3The respondent filed a Response denying the allegations against it. The respondent submits that the applicant has filed two previous court proceedings against it, the first pertaining to disability benefits arising in 2007 (“the first proceeding”) and the second pertaining to allegations of constructive dismissal in February 2007 (“the second proceeding”). The first proceeding, the respondent advises, was settled, but the second proceeding has been dormant for some time and remains outstanding. The respondent submits that the Tribunal should dismiss the Application for abuse of process, including that there are inconsistencies in positions between the civil proceedings and the Application, or alternatively, defer the Application because of the outstanding second proceeding. Amongst other issues raised, it submits that the applicant’s position, raised in the second proceeding, that she was wrongfully or constructively dismissed needs to be determined before the Application can proceed. If the court determines that the applicant was constructively dismissed, then it will have an impact on the findings the Tribunal can make about the Application, including whether the respondent was required to further accommodate the applicant if she was terminated.

4The Tribunal sent the Response to the applicant and requested that she address the dismissal and deferral issues in her Reply.

5The applicant filed a Reply. She submits that the Tribunal ought not dismiss or defer her Application because the allegations in the Application post-date the allegations in the civil proceedings. She is not seeking to re-litigate issues and the issues raised in her Application could not have been contemplated at the time the civil proceedings were filed. She submits that the respondent knows that it would be costly for her to continue with her second proceeding and that the Tribunal is an expertise tribunal and can address the issues in her Application.

analysis

6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal’s Rules of Procedure). 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.

7Deferral is ordered to avoid adjudicative duplication and inconsistent results. The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights issues. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14. Where parties are engaged in a concurrent legal proceeding in which they are raising many of the same issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such circumstances, the Tribunal will generally order the deferral of an application.

8In my view, deferral is appropriate. In addition to the second proceeding alleging that the manager’s actions are contrary to the Code, one of the key issues the court will be required to address is whether the applicant was wrongfully or constructively dismissed. If the court finds that she was, this decision will impact on the proceedings before the Tribunal.

9Although I appreciate the applicant’s submissions that it is costly to continue with the second proceeding, that is not a factor upon which I can place any weight in determining whether or not to defer this Application. The fact is that the second proceeding remains outstanding with the issue of whether or not the applicant was terminated before the courts, undetermined, and unresolved.

10The Application will therefore be deferred pending the completion of the second proceeding process.

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 grievance 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 with this matter.