Chandrasekera v. Pusateri’s Fine Foods, 2017 HRTO 1290

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bellanage Chandrasekera

Applicant

-and-

Pusateri’s Fine Foods

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 2, 2017

Citation: 2017 HRTO 1290

Indexed as: Chandrasekera v. Pusateri’s Fine Foods

WRITTEN SUBMISSIONS

Bellanage Chandrasekera, Applicant

Self-represented

Pusateri’s Fine Foods, Respondent

Wendy Melvin, Counsel

1The purpose of this Interim Decision is to decide whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of an Employment Standards proceeding before the Ministry of Labour.

2On October 14, 2016, the applicant filed an Employment Standards claim with the Ministry of Labour, and on April 11, 2017, he filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) with this Tribunal.

3On July 6, 2017, the Tribunal’s Registrar issued a Notice of Intent to Defer (“NOID”), which invited the parties to file written submissions on whether it is appropriate for the Tribunal to defer consideration of this Application pending the resolution of the Employment Standards proceeding before the Ministry of Labour.

4On August 28, 2017, the applicant filed written submissions which opposed the deferral of the Application.

5On August 31, 2017, the respondent filed written submission which supported the deferral of the Application.

6Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the 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. 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.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

8In my view, deferral is the most fair, just and expeditious way of proceeding with the Application.

9In his submissions, the applicant argued that his Employment Standards claim and his human rights Application raise separate issues and overlap minimally, which means that there is very little potential for conflicting findings of fact or law. He also argued that he is entitled to a timely resolution of his Application, and that “justice delayed is justice denied.”

10I disagree. I agree that the applicant’s Employment Standards claim raises a number of issues, which are not raised in his human rights Application, but he also filed written submissions with the Employment Standards Officer, which raise the exact same issues as in his human rights Application, including allegations of discrimination in the workplace, and wrongful dismissal. If the two proceedings run concurrently, there will be a duplication of evidence, and a real potential for inconsistent findings of fact and law.

11Furthermore, the applicant filed his Employment Standards claim with the Ministry of Labour six months before he filed his Application with this Tribunal, and it is at a more advanced stage.

12Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the Employment Standards proceeding before the Ministry of Labour and any related reviews or appeals.

13Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, 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 and Forms can be found on its website.

14I am not seized of this matter.