HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Pando
Applicant
-and-
Colleges of Applied Arts and Technology Pension Plan,
Phil Cunnington, Paul Owens and Daniel Hayhurst
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Pando v. Colleges of Applied Arts and Technology Pension Plan
INTRODUCTION
1This is an Application filed on September 8, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint that underlies this Application was filed with the Ontario Human Rights Commission on January 25, 2008 and alleges discrimination because of disability in relation to the respondents’ refusal to provide the applicant with three consecutive days to inspect certain pension plan documents and request for information regarding the nature of the applicant’s disability.
2The purpose of this Interim Decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of another related proceeding.
3Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. By Interim Decision, 2008 HRTO 239, the Tribunal requested submissions from the parties about whether the Tribunal should defer dealing with this Application pending the resolution of proceedings (the “FST proceedings”) which are currently before the Financial Services Tribunal (“FST”) of the Financial Services Commission of Ontario (“FSCO”). The Tribunal has received and considered submissions from all parties.
FACTS AND SUBMISSIONS
4This Application arises out of the applicant’s attempt to exercise his right to inspect certain documents maintained by the respondent pension plan pursuant to s. 29 of the Pension Benefits Act, R.S.O. 1990, c. P.8, as amended. The applicant, who is a retiree under the pension plan, has been exercising his annual right to inspect for several years, and issues have arisen as to the length of time that the applicant has been afforded to conduct his inspection.
5On November 5, 2007, the applicant wrote to the respondents to indicate that he wished to exercise his right to inspect, and requested that the documents be made available for inspection for three consecutive days for various reasons, including “personal health related issues”. Thereafter, correspondence was exchanged between the parties, wherein the respondents took the position that the applicant was only entitled to one day to conduct his inspection while the applicant continued to insist that he required three days.
6Ultimately, by letter dated December 7, 2007 addressed to a representative of the respondents and copied to FSCO, the applicant filed a complaint with FSCO about the respondents’ refusal to provide him with three consecutive days to conduct his inspection. This letter includes extensive reference to the applicant’s personal health issues which form part of the basis for his request for three consecutive days.
7On June 5, 2008, the Deputy Superintendent, Pensions issued a Notice of Proposal to make an order requiring the respondent pension plan to provide the applicant with three consecutive business days for his 2007 annual inspection on the basis that the applicant’s request “is reasonable and not frivolous or vexatious”. The Notice of Proposal refers to the applicant’s November 5, 2007 letter, which includes reference to the applicant’s personal health related issues.
8In accordance with the provisions of the Pension Benefits Act, the respondent pension plan exercised its right to require a hearing before the Financial Services Tribunal by Request for Hearing dated June 25, 2008. A pre-hearing conference was held on October 16, 2008 at which it was confirmed that the FST has jurisdiction to hear the matter. The pre-hearing conference memorandum filed by the respondents estimates that up to five days may be required for the FST hearing, while the memorandum filed by the Superintendent states that only three days will be required. From the pre-hearing conference memorandum, it appears that only three witnesses will be called to testify at the FST hearing.
9A further pre-hearing conference was held on October 31, 2008 primarily to address the respondents’ concern about the overlap between the FST proceeding and the Application filed with this Tribunal. A settlement conference in the context of the FST proceeding was scheduled to proceed on November 25, 2008, and a further pre-hearing conference was scheduled for November 28, 2008. No information has been provided to the Tribunal regarding the outcome of these conferences, or whether any dates yet have been set for the FST hearing. It appears, however, that the FST may be awaiting this Tribunal’s decision regarding the status of the Application before setting hearing dates.
10The respondents take the position that awaiting the final disposition of the FST proceeding will prevent a multiplicity of proceedings, avoid the risk of prejudice, and prevent unnecessary duplication of effort and expense. The respondents further take the position that the FST is a specialized tribunal with jurisdiction and expertise to determine the nature and scope of the applicant’s rights under the Pension Benefits Act, and the FST’s factual and legal determination of the applicant’s rights under that legislation should inform this Tribunal’s approach to the issues raised by the Application.
11In contrast, the applicant argues that the issues in the two proceedings are distinct: the issue in the FST proceeding is whether the respondent pension plan complied with its obligations under s. 29 of the Pension Benefits Act, which issue is not raised on the Application; and the issue before this Tribunal is whether the respondents discriminated against the applicant because of his disability contrary to the Code, which issue is not raised in the FST proceeding. The applicant also relies upon the fact that he is not a party to the FST proceeding, and that he may have to wait “potentially for years” for the outcome of the FST proceeding. While not expressly referenced in the applicant’s submissions, he may be referring to the fact that under s. 91(1) of the Pension Benefits Act, the respondent pension plan would have a full right of appeal to the Divisional Court from any adverse ruling by the FST.
DECISION
12Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
13While deferral is not automatically invoked simply because the parties are involved in other legal proceedings, it is not a requirement for deferral that the other legal proceeding be dealing with precisely the same issues as are raised in the human rights application. Rather, the fundamental question for this Tribunal is whether or not it is fair, just or expeditious to defer an application.
14Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are 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