Stephens v. Ontario (Minister of Community and Social Services), 2010 HRTO 100

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Albert Stephens Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services Respondent

and B E T W E E N:

Albert Stephens Applicant

-and-

The Regional Municipality of Durham Respondent

INTERIM DECISION

Adjudicator: David Muir Date: January 15, 2010 Citation: 2010 HRTO 100 Indexed as: Stephens v. Ontario (Minister of Community and Social Services)

1These are two Application filed June 30, 2009 under section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Applications allege discrimination in employment based on disability.

2In the response to the complaint at the Ontario Human Rights Commission re-filed as the Response to the Applications, the respondent, The Regional Municipality of Durham stated that the Commission should exercise its discretion to decline to deal with the Applications because their subject matter was the subject of proceedings before the Social Benefits Tribunal (the “SBT”).

3The purpose of this Interim Decision is to determine whether the Tribunal should dismiss or defer consideration of these Applications in light of an application raising the same or similar issues before another statutory tribunal, the SBT.

4Section 45.1 of the Code confirms the Tribunal’s authority to dismiss an Application in accordance with its Rules if it considers that the subject matter of the Application has been appropriately dealt with in another proceeding. Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an Application. The Tribunal’s Rules of Procedure for Transitional Applications (the “Transitional Rules”), provide that the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application after providing all parties an opportunity to make submissions.

5I find that the most appropriate course of action at this stage is to defer these Applications pending the outcome of the proceeding before the SBT. The substance of both Applications appears to be identical and is in part an attack on various provisions of regulations under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997 based on the Code. The SBT has the authority to deal with that legal issue. If that question was ever in doubt, such doubt was put to rest as a result of the decision of the Supreme Court of Canada in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, 2006 S.C.J. No. 14. On the other hand, I note that while the respondents state that the applicant’s appeal is currently before the SBT, the parties have not advised as to the status of that proceeding. In the absence of anything further, I am not prepared to dismiss the Applications at this stage.

6The policy reasons to defer in the appropriate case are well established. In Cui v. MSM, 2008 HRTO 449, the Tribunal stated as follows:

In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal summarized the jurisprudence regarding deferral as follows, at paras. 18-20:

Deferral 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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

The Tribunal has said that it will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues (Krieger v. Toronto Police Services Board, 2008 HRTO 183). The Tribunal has also deferred an application 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). In such circumstances, the Tribunal is concerned about the prospect of concurrent overlapping proceedings and the potential for conflicting findings of fact or law. Where the civil action is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.

7In this case, the factual and legal issues raised in the SBT proceeding are apparently identical to those in these Applications. In these circumstances, for the reasons set out above, the Tribunal finds it appropriate to defer consideration of these Applications pending the conclusion of the SBT proceedings. Any party wishing to request that the Tribunal proceed with these Applications shall do so in writing in accordance with Rule 16 of the Transitional Rules.

8I am not seized.