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: Esi Codjoe
Indexed as: Hewitt v. HTS Engineering Ltd.
WRITTEN SUBMISSIONS
Kenneth Hewitt, Applicant
Self-represented
HTS Engineering Ltd. and Brian McCullough, Respondents
Christopher McClelland, Counsel
BACKGROUND AND ISSUE
1The applicant filed this Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on March 28, 2017.
2On April 19, 2017, the respondents requested that the Tribunal defer the Application pending the outcome of another proceeding. It noted that the applicant filed an Employment Standards Act, 2000, S.O. c.41 (”ESA”) claim with the Ministry of Labour on or before January 31, 2017. The parties provided written submissions.
3This Interim Decision decides whether the Tribunal should defer consideration of the Application pending the conclusion of the ESA claim.
4The applicant opposes the respondents’ request to defer. He submits that while the subject matter of the proceedings is the same, the nature of the proceedings is different. The applicant also argues that human rights remedies are not available in an ESA claims process/proceeding.
LAW AND REASONS
5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case.
6The Tribunal has deferred applications where there is an ESA claim based on the same facts. In explaining this approach, the Tribunal has referred to the fact that the deferral of an application in those circumstances addresses the issues of adjudicative economy, efficiency and the possibility of inconsistent findings of fact in concurrent proceedings. See Hahnfeld v. Nacora Insurance Brokers, 2014 HRTO 1161, and Gaudreault v. S & B Dentistry Corporation, 2012 HRTO 2036.
7I find that it is appropriate to defer this Application pending the conclusion of the ESA claim. The applicant alleges that the respondents terminated his employment after he requested accommodation on the basis of disability. The applicant filed his ESA claim before he filed his Application, and the claim is outstanding. The ESA claim is based on the same alleged incidents.
8It is clear that the underlying issue relevant to the ESA claim is the same as the underlying issue in the Application; namely did the respondents terminate the applicant’s employment, or did he resign from his positon. The fact that there are no human rights remedies available in the ESA claims process is not a sufficient basis to proceed concurrently at this stage. There is a substantial risk that the two matters will give rise to inconsistent factual findings were they to proceed concurrently. Consequently, it is appropriate to defer this Application.
9The 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 ESA claim. 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 of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.
10I am not seized.
Dated at Toronto, this 19th day of July, 2017.
“Signed by”
Esi Codjoe
Vice-chair```