HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra MacDonald
Applicant
-and-
HCMWorks Inc. and Julia Fournier
Respondents
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: MacDonald v. HCMWorks Inc.
WRITTEN SUBMISSIONS
Sandra MacDonald, Applicant
George Walker, Paralegal
HCMWorks Inc. and Julia Fournier, Respondent
Natalie Scott, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability, gender identity and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On August 17, 2017, the respondent filed its Response in which it made a request to dismiss the Application without filing a full response. The reason for the request to dismiss was that the applicant had filed a civil claim in which she was requesting a remedy for an alleged breach of the Code. The respondent attached the applicant’s Defence and Counterclaim which she filed with the Superior Court.
3In Interim Decision, 2017 HRTO 1200 the Tribunal denied the Request to dismiss. In this decision the Tribunal directed the parties to provide their submissions on whether the Application should be deferred pending the completion of civil claim filed in the Superior Court.
4The parties have provided their submissions. The respondent supports deferral on the basis that there is risk of the Tribunal and the Superior Court making inconsistent findings on the facts and law. The applicant opposes the deferral on the basis that there is no overlap in issues in the two proceedings.
Analysis and Decision
5The 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 facts and 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.
6In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. Although the applicant is seeking different remedies in the two proceedings and is not alleging remedies for Code breaches in the civil claim, both proceedings are dealing with the termination of the applicant’s employment, which means that there is a potential for duplication of evidence and inconsistent findings of fact and law. Furthermore, the applicant filed a Statement of Claim with the Superior Court first.
7Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the civil proceeding before the Superior Court and any related appeals.
8Pursuant 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.
order
9This Application is deferred pending the conclusion of the civil proceeding before the Superior Court and any related appeals.
10The respondent is not required to file a full Response until further directed by the Tribunal.
11I am not seized of this matter.
Dated at Toronto, this 15^th^ day of November, 2017.
”Signed by”______________________
Laurie Letheren
Vice-chair