To defer or not to defer a human rights application: What are the relevant questions?
Where the Human Rights Tribunal of Ontario finds there is a separate proceeding that may involve similar facts, the Tribunal has discretion to defer consideration of an application until the proceeding has been completed. Such was the question, whether or not to defer the application in the recent interim order in West v.Yogen Fruz Canada Inc.
On March 8, 2016, the applicant filed a human rights application alleging discrimination in employment because of disability.i The application indicated that the facts contained in the application were part of a civil action, although there was no specific request from the applicant to postpone the matter pending the completion of the civil court action.
Rule 14.1 of the Human Rights Tribunal Rules of Procedure states as follows:
“…the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.ii”
In keeping with the rules, the Tribunal sought submissions from both parties about whether or not it would be appropriate to defer the consideration of the application pending the resolution of the civil court action.
Among other things, the applicant submitted that although a civil suit was pending, the civil suit did not address any “Code” violations, and further, at the time of the filing of the civil suit, the applicant had not been terminated from her employment which “precipitated” the human rights application. iii
The respondent, among other things, submitted there was substantial overlap of the “facts and allegations” and that both matters refer to a common incident and seek similar damages. As such, the deferral of the application would be considered appropriate.iv
In the interim decision of June 7, 2016, the Tribunal ruled that the deferral would not be appropriate in this case as the legal issues in the case are distinct. Among other factors, the Tribunal found the following:
- The legal issues in the case were distinct
- The application raised the issue of whether the respondent discriminated against the applicant because of disability, while the civil matter dealt with the issue of negligence in regard to injuries sustained in a motorcycle accident on its property
- The civil proceedings raised no issues with respect to discrimination on the basis of disability and the termination of her employment on that basis.
As it was not appropriate to defer the application pending the conclusion of the civil court proceeding, the respondent’s request for deferral was denied.
The takeaway for employers
The takeway for employers is that while the Tribunal can and will defer applications, employers need to insure that the facts of the application are dissimilar enough to warrant the Tribunal exercising their discretion, otherwise time and energy could be spent trying to defer an application that ultimately moves ahead, regardless of your efforts.
i West v. Yogen Fruz Canada Inc. 2016 HRTO 777 para. 1
ii Human Rights Tribunal Rules of Procedure Rule 14.1
iii Ibid., para. 4
iv Ibid., para. 5
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