Miller v. Bernard, 2010 HRTO 1293

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerome Miller

Applicant

-and-

Alan Bernard

Respondent

interiM DECISION

Adjudicator: Alison Renton

Date: June 7, 2010

Citation: 2010 HRTO 1293

Indexed as: Miller v. Bernard

1This is an Application filed on June 29, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges discrimination on the basis of race, colour, place of origin, ethnic origin, sex and reprisal in employment. The applicant’s allegations arise from an incident with the personal respondent at the “Bus Ball” held on March 21, 2009, for which the respondent was criminally charged. The applicant also named his employer, London Transit Commission, as a respondent.

2In a previous Interim Decision, 2009 HRTO 2071 (“the Interim Decision”), the Tribunal deferred the Application pending completion of a related grievance proceeding. As a result of a settlement, that proceeding is now completed and the applicant filed a Request for Order During Proceedings (“RFOP”) requesting that his Application be amended to remove the employer as a respondent and that the Application be re-activated.

3The employer did not file a Response to the RFOP. The respondent filed a Response to the RFOP in which he did not address the applicant’s request to remove the employer as a party, but submitted that the Application be deferred pending completion of the criminal proceedings. The applicant has not communicated with the Tribunal in relation to the respondent’s request that the Application be deferred pending completion of the criminal proceedings.

4As the applicant has arrived at a settlement with London Transit Commission, it is removed as a respondent and the style of cause is amended accordingly.

5In the Interim Decision, the Tribunal noted that the respondent had also requested that the Application be deferred pending completion of the criminal proceedings. The Tribunal determined that it would defer the Application pending completion of the grievance proceeding and noted, at para. 9:

If the criminal charges have not been resolved after the conclusion of the grievance process, the Tribunal will consider, upon request, the personal respondent’s request to defer the Application pending conclusion of the criminal charges.

6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of any application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

7In this case, there are ongoing criminal proceedings in which the respondent is charged following the incident at the “Bus Ball” held on March 21, 2009. It seems to the Tribunal that the facts in the criminal proceeding may overlap, perhaps significantly, with the facts alleged by the parties to this Application. This raises the possibility of inconsistent findings of fact if the Application is not deferred and runs concurrently to the criminal proceeding.

8Rules 14.2 of the Tribunal’s Rules of Procedure states that, where the Tribunal intends to defer consideration of an Application under Rule 14.1, it will first give the parties notice of its intention to consider deferral of the Application and an opportunity to make submissions.

9Accordingly, the Tribunal directs that the applicant send to the respondent and file with the Tribunal his submissions with respect to whether the Application ought to be deferred, pending the outcome of the criminal proceeding against the respondent, within 10 days of the date of this Interim Decision.

10The Tribunal will make a decision regarding whether the Application ought to be deferred once it receives the applicant’s submissions. If the applicant does not file any submissions, the Tribunal will issue a decision based upon the submissions that have been made by the respondent in his Response and his Response to the RFOP.

11I am not seized of this matter.