Patterson v. 1122139 Ontario Inc., 2016 HRTO 877

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexis Patterson

Applicant

-and-

1122139 Ontario Inc. o/a Feastivities by Homestyle Catering

Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana
Date: July 4, 2016
Citation: 2016 HRTO 877
Indexed as: Patterson v. 1122139 Ontario Inc.

WRITTEN SUBMISSIONS

Alexis Patterson, Applicant

Self-represented

1122139 Ontario Inc. o/a Feastivities by Homestyle Catering, Respondent

Leanne Standryk, Counsel

Introduction

1This is an Application filed 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, sexual solicitation or advances, family status, marital status, and reprisal or threat of reprisal. 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 has commenced a proceeding before the MOL alleging contraventions of the Employment Standards Act, 2000 (“ESA”). The respondent requests that the Application be deferred and submits that there may be duplication in the remedies sought in the Application and in the monetary relief claimed before the MOL.

3The applicant opposes the deferral. She submits that her ESA claim does not make any Code allegations and that it only concerns entitlement to wages during the applicant’s employment with respondent. The applicant claims that the respondent contravened ESA standards with respect to payment of wages, overtime pay, public holiday pay and limits on hours of work. The applicant attached a copy of her ESA claim to the Reply.

DECISION

4I do not find deferral of the Application to the ESA process appropriate.

5The 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.

6In this case, deferral does not appear to be the most fair, just and expeditious way of proceeding. I do not find substantial overlap between the issues and remedies covered by the Application and those referred to in the ESA claim. In the Application, the applicant alleges that the respondent discriminated on the grounds of family and marital status, including on the ground of pregnancy. The Application lists multiple incidents of alleged sexual harassment and alleged reprisal for refusing a sexual solicitation or advance. The MOL claim appears to be limited to the issue of whether the respondent paid the applicant in accordance with her entitlements under the ESA, and whether it respected limits on hours of work.

7While both proceedings necessarily refer to the applicant’s period of employment with the respondent, the issues are sufficiently distinct that there is relatively little risk of inconsistent findings of fact or law if the two matters were to proceed concurrently.

8The respondent’s request to defer the Application is denied.

9As both parties have agreed to mediation, the matter will proceed to mediation. The Registrar will schedule the mediation and will send a notice of mediation to the parties.

10I am not seized.