Osman Tekes v. The Corporation of the Town of Markham and William Wiles, 2009 HRTO 1665

Human Rights Tribunal of Ontario

B E T W E E N:

Osman Tekes

Applicant

-and-

The Corporation of the Town of Markham and William Wiles

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: October 13, 2009

Citation: 2009 HRTO 1665

Indexed as: Tekes v. Markham (Town)

1This is an Application filed on March 25, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). As described in an earlier Interim Decision, 2009 HRTO 1365, the applicant is an owner of property in the Town of Markham (the "Town"). The Application alleges discrimination in services arising out of actions taken by the Town in relation to by-law enforcement issues and other property-related issues in the period 1996 to January 2009.

2The Town has commenced a court proceeding seeking to restrain site alteration to the applicant's property. The applicant has filed a counterclaim in which he alleges that the Town has ignored his complaints about his neighbours, acted in a highhanded manner and abused its powers. The applicant and his co-owner seek damages against the Town in the counterclaim for "causing stress and preventing [them] from enjoying their home".

3In the earlier Interim Decision, the Tribunal decided that section 34(11) did not apply to bar the Application, and dismissed the respondents' request for early dismissal. However, the Tribunal sought submissions from the parties on whether the Application should be deferred pending the completion of the civil proceeding. The respondents have filed submissions; the applicant has not.

4On the basis of the material before me, I find it appropriate to defer this Application pending completion of the civil proceeding.

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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

7The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal's normal approach is to defer to the other proceeding.

8Therefore, the initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same human rights issues are being raised before another decision-maker with the authority to deal with those issues.

9Other applications before the Tribunal may raise facts or issues which overlap with those in other concurrent proceedings, but in which human rights issues are not clearly engaged. In those cases, in exercising its discretion to defer, the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it.

10The Tribunal has deferred an application, for instance, where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution (Klein v. Toronto Zionist Council, 2008 HRTO 189). Even if the human rights issues will not be resolved by the civil action, if it is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal's proceeding.

11In the case before me, there is a concurrent civil proceeding arising out of many of the same facts as the Application. The by-law enforcement and property issues are central to both matters. I accept the submissions of the Town that in both matters, there may be complex and technical issues of fact requiring expert evidence. The potential duplication of such evidence, with its attendant expense, and the possibility of inconsistent findings of fact, weighs in favour of deferral. The civil proceeding was commenced b y Notice of Action dated August 1, 2008, and the applicant's counterclaim is dated October 2, 2008. Although the applicant has not referred to a human rights claim specifically in his counterclaim, he has sought damages on the basis of unequal treatment, and harassment by Town officials.

12In the circumstances, and having regard to the subject matter of the other proceeding, its nature, the type of remedies available and the status of the other proceeding, the Tribunal decides it is appropriate to defer this Application pending the completion of the civil proceeding.

13Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the civil proceeding has been concluded.