Free v. Magnetawan (Municipality), 2010 HRTO 1236

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Free

Applicant

-and-

Municipality of Magnetawan and Richard Smith

Respondents

INTERIM decision

Adjudicator: Faisal Bhabha

Date: June 2, 2010

Citation: 2010 HRTO 1236

Indexed as: Free v. Magnetawan (Municipality)

BACKGROUND

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 4, 2010. The Application contains identical allegations to those contained in a previous Application filed by the applicant (Tribunal File 2009-02691-I), which was dismissed by the Tribunal in Free v. Magnetawan (Municipality), 2009 HRTO 1621, on the basis of section 34(11) because the applicant had an existing civil claim in the courts seeking damages for discrimination.

2In an Interim Decision, 2010 HRTO 719 dated April 7, 2010, the Tribunal found that this Application is not barred by section 34(11) because the applicant had amended his civil claim to remove his claim for Code damages.

3On April 7, 2010, the Registrar issued a Notice of Intent to Defer, seeking submissions from the parties as to whether the Application should be deferred pending the outcome in the civil proceeding. The respondents were not directed to file a Response to the Application.

4On April 13, 2010, the applicant filed his submissions, and also filed a Form 10 Request for Order During Proceedings (“RFOP”) seeking to add two additional personal respondents. On May 3, 2010, the respondents filed their Form 11 opposing the applicant’s RFOP. The applicant filed additional submissions on May 4, 2010.

5On May 13, 2010, the applicant filed a Request for Interim Remedy (Form 16) seeking the following relief:

• Immediate reinstatement to former position or, alternatively, compensation for lost wages from the date of termination up to present and until a final outcome.

• Reinstatement of health benefits.

• Payment of compensation for medical expenses from the date of termination up to present.

• Payment of legal costs.

• Removal of the personal respondents and prospective personal respondents (Smith, Paul, Nicholls and Urbanski) from their roles as directing minds of the corporate respondent.

• Order for the respondents to adopt human rights policy and training.

• Order for the respondents to cease and desist from interfering with witnesses and employees of the corporate respondent.

• Order compelling mediation.

6On May 18, 2010, the respondents wrote to the Tribunal seeking an extension of time for filing a Response to the applicant’s Request for Interim Remedy. The applicant filed submissions opposing the respondents’ request for an extension of time, characterizing it as a “delay tactic”.

7On May 28, 2010, the applicant filed a Request to Expedite the Proceedings (Form 14), citing reasons of alleged intimidation, extortion and conflict of interest on the part of the respondents. The respondents have not responded to the Request.

REQUEST TO EXPEDITE

8Prior to dealing with the deferral request, it is worth briefly addressing the request to expedite. In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at paragraph 9, the Tribunal held as follows:

For a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

9A previous request to expedite, relating to the applicant’s previous Application, which contained virtually identical allegations, was denied in 2009 HRTO 951.

10There is no basis to grant the applicant’s request. The applicant’s request necessitates making findings of fact and determinations of liability that go to the heart of the merits of the Application. The harm alleged if the Application is not expedited is mostly speculative and does not meet the threshold typically required by the Tribunal.

DEFERRAL

11For the reasons that follow, I find that deferral is warranted in this case.

12Pursuant to the Rules, the Tribunal may defer consideration of an application on such terms as it may determine, and on its own initiative. 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. The considerations in deciding whether to defer are distinct from the jurisdictional question about whether the Tribunal should deal with an application where related facts are at issue in a civil proceeding. This latter question has already been addressed in the April 7, 2010 Interim Decision.

13While it was the applicant who initially requested deferral, he subsequently took the position that deferral is not appropriate because the respondents have “ignored applicant’s settlement efforts and the stress resulting from the actions of the respondents has caused his health has deteriorated [sic] significantly (heart attack).” The applicant also relies on the respondents’ “refusal to engage in mediation”, the “aggressive and highhanded behaviour of the respondents” and the “refusal of certain members of Council to acknowledge their conflict of interest” in dealing with the applicant’s human rights litigation.

14Because the applicant’s submissions on deferral were erroneously framed as a request to re-activate (the Application was never deferred in the first place), the respondents oppose the applicant’s request to re-activate. In other words, the respondents support deferral of the Application.

15Absent 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. While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held:

Some of the factors that may be relevant in deciding whether to defer consideration of an application 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. (Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, at para. 10).

16There is a public interest in avoiding the duplication of adjudicative proceedings hearing the same evidence and deciding some or all of the same issues. One of the advantages of bringing a discrimination claim as part of a wrongful dismissal action is that the court will determine underlying facts that are integral to the issues both of whether the employment was terminated with just cause, and whether it was discriminatory. While these two questions are distinct legal issues leading to distinct legal remedies, they rely on interrelated and often identical facts.

17In this case, the applicant seeks damages in the civil proceeding for wrongful dismissal and defamation. The allegations stem from identical facts and events as this Application. It is therefore inevitable that the Tribunal will be asked to make findings of fact and address issues that will also be before the court. For this reason, even though the other proceeding does not make out an identical claim, it is appropriate for the Tribunal to exercise its discretion and defer the Application pending the outcome of the civil trial.

18The Tribunal 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 other proceeding has been concluded.

OTHER MATTERS

19Given the deferral, it is therefore not necessary at this point to consider the applicant’s additional Requests or to require submissions from the respondents in relation to those Requests. If, and when, the Application is re-activated, the parties may pursue any relevant preliminary issues at that point.