HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

The College of Physicians and Surgeons of Ontario

and Carol Leet

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: October 19, 2009

Citation: 2009 HRTO 1703

Indexed as: Christianson v. College of Physicians and Surgeons of Ontario

INTRODUCTION

1This is an Application filed August 27, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the area of goods, services and facilities on the basis of disability. The respondents filed a full Response on January 5, 2009, in which they requested the Application be deferred pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure. The request was granted in Christianson v. College of Physicians and Surgeons of Ontario, 2009 HRTO 438 (Interim Decision dated April 15, 2009).

2On September 11, 2009, the applicant filed a Form 10 requesting that the Tribunal proceed with his Application. According to the Tribunal’s Rules, where an application has been deferred, a party may make a request to re-activate the Application:

14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than (sixty) 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

3The applicant met the conditions of the Rules by filing his request and a copy of the final decision of the Health Professions Appeal and Review Board (“HPARB”), dated July 13, 2009 (“HPARB Decision”), within 60 days.

4The respondents filed a Form 11 on September 24, 2009, opposing the applicant’s request on the grounds that only two of his three complaints have been finally determined by the HPARB. The HPARB Decision denied the applicant’s request for reconsideration of a decision dated May 27, 2009, in HPARB files 07-CRV-0197 and 07-CRV-0449. The respondents argue, however, that an additional complaint has not yet been finally determined.

5The respondents submit that HPARB file 08-CRV-0197 (CPSO file #65627) remains subject to a Notice of Intention Not to Proceed with Review, dated April 24, 2009, whereby the HPARB gave notice that it was not proceeding with the file (the “Notice”). According to the respondents, the parties had 30 days to make submissions in respect of the Notice, though it appears no further action was taken by either side. The respondents maintain that, until the HPARB issues a final decision pursuant to the Notice, the complaint cannot be said to be concluded and the continued deferral of the Application is warranted.

6There is no dispute that the HPARB decision of July 13, 2009 addresses only 07-CRV-0197 and 07-CRV-0449. The question remains whether file 08-CRV-0197 has been concluded for the purposes of Rule 14.4, and whether the Application should continue to be deferred.

ANALYSIS AND DECISION

7Deferral is a discretionary remedy aimed at avoiding concurrent proceedings, which could lead to inconsistent adjudicative decisions dealing with the same evidence and issues.

8It is clear that the applicant’s appeal to the HPARB is concluded. It also appears that the applicant considered the Notice, which communicated the College’s refusal to investigate the applicant’s complaint, to be a final decision respecting file #65627. While it may not be a “final” decision in a technical sense, it is clear that there is no ongoing process that risks duplicating the hearing of evidence and deciding issues that will be before the Tribunal in this Application.

9The technical finality of another agency’s decision is not the determinative factor in the Tribunal’s decision whether to exercise its discretion to defer an Application. In this case, it was the hearing in progress before the HPARB that gave rise to the deferral order in the first place. There is no question that those proceedings are over, and that no other adjudicative proceeding in respect of the allegations contained in the Application is currently active.

10The Tribunal will therefore proceed to deal with the Application.

11The respondents have indicated they intend to make a request for dismissal pursuant to section 45.1 of the Code. They should file their Request, in Form 10, within 10 days of this Interim Decision, and if they do so, the Tribunal will determine how to proceed with the Request.

12I am not seized of this matter.