HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ahisha Fraser on behalf of Paramdai Shakir
Applicant
-and-
Kidron Valley Rehab Inc. and Marco Sorrento
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Shakir v. Kidron Valley Rehab
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination on the basis of sex in the provision of goods, services or facilities.
2In essence, the applicant states that she received massage services from the individual respondent while he was employed by the corporate respondent. She states that after the individual respondent ceased to be employed by the corporate respondent, he provided massage services to her in her home. Among other things, she says that during these home visits, the individual respondent made sexual advances and touched her inappropriately.
3The individual respondent has filed a Response in which he denies the allegations of discrimination and seeks the deferral of the Application pending the outcome of a complaint filed by the applicant with the College of Massage Therapists of Ontario (“College”).
4The corporate respondent filed a Response in which it asks that the Application be dismissed because another proceeding (the complaint with the College) has in whole or in part dealt with the substance of the Application. In the alternative, this respondent seeks a deferral of the Application pending the determination of the complaint by the College. Finally, this respondent states that it has no knowledge of or involvement in the incidents giving rise to the Application and asks that the Application be dismissed against it.
5In its Response, the corporate respondent has identified the College as an affected party. The corporate respondent has since filed correspondence and a Request for an Order During Proceedings (“RFOP”) seeking to amend the Response to correct an error in the College’s address listed in its Response.
6The applicant has filed a Reply, but has not addressed the requests for dismissal and deferral. The Reply does not address the RFOP.
7None of the parties have responded to the RFOP and the time for doing so under the Rules has elapsed.
Request to Amend the Response
8The Response is amended to include the corrected address for the College. The Tribunal will resend its Notice to Affected Party to the corrected address and will provide a copy of this Interim Decision to the College.
Request to dismiss
9Section 45.1 of the Code provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.
10For section 45.1 to apply, the corporate respondent must demonstrate that the complaint before the College involves a proceeding within the meaning of the Code and that the College matter has reached its conclusion and has “appropriately dealt with” the substance of the Application.
11From the material before me, I am unable to determine whether the complaint has been dealt with by the College or whether the matter is ongoing.
Request to Defer
12The 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 ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
13The Tribunal will generally defer an application where there is ongoing litigation based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. It is appropriate to address the requests for dismissal and deferral as preliminary issues.
Request for Submissions
15It is appropriate to address the respondents’ request to dismiss or defer the Application as preliminary matters.
16To do so, the Tribunal requires further submissions from the parties. In the circumstances, it is also appropriate that the College have an opportunity to make submissions on these issues.
17Within ten days of the date of this Interim Decision, the applicant is required to provide additional written submissions addressing the following issues:
a. What is the status of the complaint filed with the College?
b. If the College’s complaint process has reached its conclusion, has the College’s determination appropriately dealt with the substance of the Application?
c. If the complaint is ongoing before the College, should the Tribunal defer the Application pending the outcome of the College’s complaint process?
18Within twenty days of the date of this Interim Decision, the respondents and the College shall provide to the applicant and each other and file with the Tribunal written submissions addressing questions a, b and c, above.
19If the parties and the College do not provide further written submissions, the Tribunal may determine the preliminary issues based on the materials already filed or it may provide further direction.
20I am not seized of this matter.
Dated at Toronto, this 9th day of June, 2010.
”signed by”______________
Michelle Flaherty
Vice-chair