Maheen Asim v. Cybersecurity Umbrella Corp., 2017 HRTO 1385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maheen Asim

Applicant

-and-

Cybersecurity Umbrella Corp., Sajid Saiyed and Aspire Employment Solutions

Respondents

INTERIM DECISION

Adjudicator: Sophie Martel

Date: October 19, 2017

Citation: 2017 HRTO 1385

Indexed as: Asim v. Cybersecurity Umbrella Corp.

WRITTEN SUBMISSIONS

Maheen Asim, Applicant

Self-represented

Cybersecurity Umbrella Corp. and Sajid Sayed, Respondents

Self-represented

Aspire Employment Solutions, Respondent

Self-represented

1This Interim Decision addresses whether the Application should be deferred pending the outcome of the applicant’s claim with the Ministry of Labour under the Employment Standards Act, 2000, S.O. 2000, c.41 (“ESA”).

2The applicant filed an Application alleging discrimination because of sex, including sexual harassment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that she was sexually harassed in the workplace and constructively dismissed.

3Before filing her Application, the applicant also filed a claim with the Ministry of Labour alleging contraventions of the ESA. The claim alleges that the applicant was constructively dismissed. There are also claims regarding a failure to receive a proper wage statement, working over the limit on hours of work and the absence of an “Employment Standards in Ontario” poster.

4On September 6, 2017, the Tribunal issued a Notice of Intent to Defer (“Notice”) to the parties. Along with the Notice, the respondents were also provided with a copy of the Application. The Notice indicated that the Tribunal was considering deferring the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Notice advised the parties that they could make submissions as to why consideration of the Application should or should not be deferred.

5The applicant provided submissions on October 5, 2017, asking that the Application not be deferred because the issues raised in the ESA claim do not include the sexual harassment she alleges she experienced in her employment with the respondents. The personal respondent, who is also the representative for the first named corporate respondent, supports the deferral because he requires more time to respond to the Application. The other corporate respondent did not provide any submissions in respect of the deferral.

findings

6I find that the Application should be deferred for the following reasons.

7The 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 of the Tribunal’s Rules of Procedure). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

8The Tribunal generally considers the following factors in determining whether to defer consideration of an application: 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 the application having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

9While deferral is not automatic simply because the parties are engaged in another proceeding, deferral does not require that the other proceeding deal with precisely the same legal issues as those raised in the human rights application. See Deli v. Toronto Police Services Board, 2009 HRTO 330, and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.

10Tribunal decisions have deferred applications where there were ongoing Ministry of Labour proceedings when the facts and issues raised in the ESA claims overlapped with the subject matter of the applications: see for example, Matechuk v. OLG at Thousand Islands, 2009 HRTO 324, and Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448.

11Even though the applicant does not specifically raise sexual harassment allegations in her claim under the ESA, they are part of the factual background underpinning her constructive dismissal claim. The constructive dismissal claim is central to both her Application under the Code and in her ESA claim. If the two matters proceeded concurrently, there is a real risk that the two proceedings could have inconsistent findings of fact in respect of the constructive dismissal claim.

12The applicant filed her ESA claim first, on May 10, 2017, and it is therefore at a more advanced stage than the Application under the Code, which was filed on June 27, 2017.

13I therefore find it appropriate to defer consideration of the Application pending the conclusion of the ESA claim.

14If the applicant believes that the ESA proceeding did not appropriately deal with the substance of her Application, she may seek to re-activate her deferred Application. The applicant should take note, however, that, under s. 45.1 of the Code, the Tribunal has the power to dismiss Applications if the substance of an Application has been appropriately dealt with in another proceeding.

15Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure address how the Application may be brought back before the Tribunal following conclusion of another proceeding. A party wishing to proceed with an application must file a Request for Order During Proceedings (Form 10) no later than 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/.

order

16For the reasons set out above, the Tribunal will defer consideration of the Application pending the outcome of the claim under the ESA.