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: July 7, 2010
Citation: 2010 HRTO 1488
Indexed as: Miller v. Bernard
[1] This 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 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.
[2] In his Response, the respondent requested that the Application be deferred pending the conclusion of his criminal proceedings. The respondent submitted that he would be prejudiced in his criminal proceedings if he were required to testify at a Tribunal hearing prior to his trial and that he would be relying upon the certified trial transcript from his trial at the Tribunal’s hearing.
[3] In an earlier Interim Decision, [2009 HRTO 2071](https://www.minicounsel.ca/hrto/2009/2071), the Tribunal deferred the Application pending completion of a related grievance proceeding. In that Interim Decision, the Tribunal noted that the criminal charges were still outstanding and if the criminal charges had not been resolved after the conclusion of the grievance process, the Tribunal would consider, upon request, the respondent’s request to defer the Tribunal’s proceedings.
[4] The applicant filed a Request for Order During Proceedings (“RFOP”) requesting that the employer be removed as a respondent following a settlement with the employer during the grievance procedure. The respondent filed a Response to a RFOP requesting, again, that the Application be deferred because of the criminal proceedings. The respondent noted that a preliminary hearing was scheduled for August 6, 2010 and that he has been instructed by his criminal lawyers to exercise his “right to remain silent” until the commencement of his criminal trial.
[5] The Tribunal issued another Interim Decision, [2010 HRTO 1293](https://www.minicounsel.ca/hrto/2010/1293) (“the second Interim Decision”), removing the employer as a respondent in light of the settlement in the grievance proceeding. In the second Interim Decision, the Tribunal sought submissions from the applicant about deferring the Application pending the outcome of the criminal proceedings against the respondent. The applicant filed submissions with the Tribunal dated June 15, 2010.
[6] The applicant requests the Tribunal not to defer his Application. He submits that the respondent is using his criminal trial as an excuse to delay the Tribunal’s proceedings and is trying to take away the applicant’s rights to proceed with this matter so he can move on from that tragic night. The applicant submits that the employer did not postpone its investigation into the events of March 21, 2009, despite the outstanding criminal proceedings, and the investigation resulted in the termination of the respondent’s employment.
[7] In all the circumstances, it appears to the Tribunal that it may be appropriate to defer consideration of the Application, pending completion of the criminal proceeding against the respondent.
[8] The 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 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.
[9] The Tribunal has deferred applications where there are ongoing criminal proceedings involving the parties, where the applicant was the party who was criminally charged. See Hadley v. J.A.C.S. Cartage, [2009 HRTO 516](https://www.minicounsel.ca/hrto/2009/516).
[10] In this case, there are ongoing criminal proceedings in which the respondent was charged following the incident between the parties at the “Bus Ball” held on March 21, 2009. 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 with the criminal proceeding.
[11] Accordingly, the Tribunal orders the deferral of the Application pending conclusion of the criminal proceeding against the respondent. The 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 before the Tribunal after the criminal proceeding has concluded.
[12] I am not seized of this matter.
Dated at Toronto, this 7th day of July, 2010.
“Signed by”
Alison Renton
Vice-chair