Nancy Schneider v. Keolis Grand River LP and Ian Cushion, 2017 HRTO 1267

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Schneider

Applicant

-and-

Keolis Grand River LP and Ian Cushion

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: September 26, 2017

Citation: 2017 HRTO 1267

Indexed as: Schnieder v. Keolis Grand River LP

WRITTEN SUBMISSIONS

Nancy Schneider, Applicant

Simone Ostrowski, Counsel

Salvation Army Canada, Respondent

Jessice Wuergler, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect employment because of sex, sexual solicitation and advances and reprisal.

2The applicant alleges that she was sexually harassed and sexually assaulted by the individual respondent during her employment with the organizational respondent. The applicant alleges that she complained to the organizational respondent's managerial personnel about the individual respondent's conduct, but no action was taken to ensure her workplace was free of harassment and discrimination. The applicant alleges that she was dismissed from employment because of her complaints.

3The Tribunal issued a Notice of Intent to Defer on August 17, 2017, which advised the parties that it may be appropriate to defer the Application pending the completion of the applicant's pay equity complaint, pursuant to Rule 14 of the Tribunal's Rules of Procedure. The Tribunal directed the parties to make submissions regarding the issue of deferral.

4The respondents filed submissions on September 18, 2017 in which they submitted that the Application should be deferred pending the outcome of the applicant's complaint to the Pay Equity Commission. The respondents submitted that the facts and evidence at issue before this Tribunal overlap significantly with facts and evidence to be raised before the Pay Equity Commission. Accordingly, there is a real prospect of conflicting findings should the matters proceed concurrently. In that regard, the respondents submitted that the applicant alleges, in her pay equity complaint, that she was dismissed for raising pay equity issues and that the individual respondent bullied and harassed her. The respondents further submit that the Pay Equity Commission can award damages that would compensate the applicant for her claims before this Tribunal. The respondents submit that the pay equity proceeding is at an advanced stage.

5The applicant submitted that there is no reason to defer this Application. The applicant submitted that the issues before the Pay Equity Commission are entirely different that those before this Tribunal. The applicant states that the Pay Equity Commission will review whether the applicant was unfairly compensated in violation of the Pay Equity Act and will not address the applicant's human rights issues. The applicant submitted that a Review Officer from the Pay Equity Office will investigate the applicant's complaint, which is a very different process from that employed by the Tribunal. The applicant submitted that there are no overlapping issues and no risk of inconsistent findings. The applicant submitted that the remedies available in a pay equity complaint are strictly financial, i.e., to correct inequitable pay, and will not address human rights breaches. The Tribunal, on the other hand, has a broad range of remedial options, including monetary, non-monetary and public interest remedies not available in a pay equity complaint. The applicant submitted that the pay equity complaint was at its very early stages and there was no timetable for its completion. The applicant submitted that it would be unfair to for the Tribunal to defer, in light of the issues engaged by her Application to this Tribunal and the effect the respondents' actions have had on her.

Analysis and Decision

6The 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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 type 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 Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

7Many of the applicant's claims in this Application, e.g., sexual harassment and sexual advances, have no connection to her claims about unfair compensation in violation of the Pay Equity Act. On the other hand, the applicant raises the important issue of the termination of her employment before both this Tribunal and the Pay Equity Commission, which she characterizes as a reprisal in both proceedings. Consequently, there is a risk of inconsistent findings regarding the applicant's dismissal. It is apparent on the face of the documents the respondents filed that the pay equity investigation is underway and is at a more advanced stage than this Application. In these circumstances, I find that it is appropriate to defer this Application pending the conclusion of the pay equity matter.

8The 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.

9I am not seized.