Hewitt v. HTS Engineering Ltd., 2017 HRTO 1548

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Hewitt

Applicant

-and-

HTS Engineering Ltd. and Brian McCullough

Respondents

INTERIM DECISION

Adjudicator: Yasmeena Mohamed

Date: November 23, 2017

Citation: 2017 HRTO 1548

Indexed as: Hewitt v. HTS Engineering Ltd.

WRITTEN SUBMISSIONS

Kenneth Hewitt, Applicant

Self-represented

HTS Engineering Ltd. and Brian McCullough, Respondents

Christopher McClelland, Counsel

Introduction

1The applicant filed an Application on February 1, 2017 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2On July 19, 2017, the Tribunal deferred consideration of the Application pending the conclusion of a related Employment Standards Act, 2000, S.O. c. 41 (“ESA”) proceeding.

3On August 24, 2017, the applicant filed a Request for an Order during Proceedings requesting the reactivation of the Application because a decision in the ESA proceeding was issued on August 21, 2017 (“ESA decision”). The respondent did not respond to the applicant’s reactivation request and the time for doing so had expired.

4On September 25, 2017, the Tribunal reactivated the Application and directed a preliminary hearing to be held to determine whether the Application should be dismissed, in whole or in part, on the basis that the another proceeding appropriately dealt with the substance of the Application.

5By letter dated October 2, 2017, the respondents requested that the Tribunal cancel the preliminary hearing. The respondents appealed the ESA decision to the Ontario Labour Relations Board (OLRB) on September 29, 2017 and it is scheduled for hearing. The respondents submit that the appeal renders the ESA decision unenforceable and therefore not a final decision for the Tribunal to consider at a preliminary hearing.

6The respondents request that the Tribunal defer the Application pending the final conclusion of the ESA appeal. The respondents rely on the reasons articulated in the Tribunal’s Interim Decision 2017 HRTO 899 to support the request for deferral.

7The applicant objects to the deferral request. The applicant submits that the ESA decision only referred to his termination and/or severance pay and did not address his allegations of discrimination due to disability. The applicant submits that the appeal will address the termination/severance issue and not deal with any human rights issues.

FINDINGS

8The 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, raising the possibility of inconsistent decisions on facts or law.

9The 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.

10Having reviewed the submissions of the parties, I find that a preliminary hearing appears to be premature in light of the appeal and ongoing ESA proceedings. The ESA decision analyses the applicant’s termination against the respondents' accommodation efforts. As determined in the Interim Decision the underlying issues in this Application and the ESA proceeding are essentially the same. Given that the ESA proceeding has not yet concluded, I find that it is appropriate to defer the Application until that process is completed. Accordingly the preliminary hearing is cancelled.

11If the applicant believes that the ESA proceeding did not appropriately deal with the substance of his Application, he may re-activate the deferred Application after the OLRB appeal is decided.

12Rules 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. It should be noted that, 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

13For the reasons set out above, the Tribunal will:

a. Defer consideration of the Application pending the completion of the ESA proceeding.

b. Cancel the scheduling of the preliminary hearing in this matter.

14I am not seized.