Hadley v. J.A.C.S. Cartage, 2010 HRTO 1529

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bevin Hadley

Applicant

-and-

J.A.C.S. Cartage Ltd., Craig Wedgbury and Roumiana Lalova

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: July 14, 2010 Citation: 2010 HRTO 1529 Indexed as: Hadley v. J.A.C.S. Cartage

1This Interim Decision addresses the applicant’s request to reactivate his Application, which was deferred by the Tribunal pending the completion of another proceeding and directs the parties as to other issues which they should be prepared to address if and when the Application proceeds to a hearing.

Request to Reactivate

2In a previous Interim Decision in this matter, 2009 HRTO 516, the Tribunal ordered that this Application be deferred pending the conclusion of criminal proceedings in which the applicant was charged with criminally harassing Roumiana Lalova, one of the personal respondents in this matter.

3On April 9, 2010, the applicant filed a Request to reactivate his Application with the Tribunal on the basis that the criminal proceeding to which the Tribunal had deferred concluded with the applicant entering into a Recognizance to Keep the Peace on March 2, 2010 (“the peace bond”). Pursuant to that Recognizance, the applicant agreed to “have no contact or communication, directly or indirectly with Roumiana Lalova” among other things.

4The corporate respondent and the personal respondent Mr. Wedgbury oppose the reactivation of the Application. They submit that the subject-matter of the Application has been appropriately dealt with by the criminal proceeding within the meaning of section 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), and that the Tribunal should therefore dismiss the Application. They also submit that the criminal court has “finally determined” whether the applicant’s rights under Part I of the Code have been infringed and that the applicant is therefore barred from pursuing his Application before the Tribunal pursuant to s. 34(11)(b) of the Code. In the alternative, these respondents submit that the criminal proceeding has not yet concluded because the peace bond is in effect for 12 months from the date it was signed. They submit that the criminal proceeding to which the Tribunal deferred ought not to be considered concluded until the peace bond is no longer in effect.

5Ms Lalova submits that the fact that the applicant entered into the peace bond shows that he is “guilty” but she does not make submissions in respect of reactivation of the Application per se.

6The Tribunal’s Rules set out the manner in which a matter which has been deferred may be brought back on for hearing before the Tribunal. Rule 19 states that a request to reactivate a deferred Application must be made no later than 60 days after the conclusion of the other proceeding and that a copy of the decision issued in the other proceeding must be attached.

7Having considered this matter, it is my view that the other proceeding to which the Tribunal deferred concluded with the applicant entering into the March 2, 2010 peace bond. Even if, as the respondent seems to suggest, the criminal charges could be brought back on before the court if the applicant were to breach the conditions of his peace bond, currently, there is no ongoing proceeding against the applicant before the criminal courts. Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Given that the criminal proceeding against the applicant is no longer ongoing, the reasons for deferring the Application no longer exist.

8The respondents’ submissions with respect to s. 45.1 and or 34(11)(b) of the Code really go to whether the Application should be dismissed by the Tribunal. They are not relevant to whether the Application ought to be reactivated, that is, actively processed by the Tribunal. The respondents are entitled, however, to pursue their arguments in this regard, and if they wish to do so, they should file a Request for Order During Proceeding asking the Tribunal to dismiss the Application on that basis. However, the respondents should be aware that where the parties have agreed to mediation in respect of an Application, in most cases, the Tribunal will not address outstanding Requests until after mediation has been held.

9The applicant made a timely request for reactivation of the Application. The legal proceeding to which the Tribunal deferred has concluded and there is no other ongoing legal proceeding dealing with the same facts or issues as those in the Application. There is therefore no basis upon which to continue to defer the Application. The request to reactivate the Application is granted.

Other issues

10The decision to reactivate the Application does not in any way reflect on the merit of the Application. Indeed, the material before the Tribunal raises a question whether the Application makes out a prima facie case under the Code. As is always the case in hearings before the Tribunal,

[t]he onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), 1985 CanLII 18 (S.C.C) at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory. (Jagit v. IN TECH Risk Management, 2009 HRTO 770, 2009 HRTO 770 at para. 18)

11The Tribunal’s power to hear and determine human rights applications is based on the Code, which, among other things, prohibits discrimination and harassment with respect to employment on the basis of the grounds set out in the Code. The Tribunal does not have a general power to inquire into claims of mistreatment which is not based on prohibited grounds in the Code. Although the applicant asserts that he had a lot of interpersonal conflict with one of the personal respondents, Ms Lalova, that “she felt a lot of hate and anger towards him” and physically assaulted him, it is not clear how the respondents’ alleged actions are connected to a prohibited ground under the Code. The applicant should be prepared to address this issue if and when the matter proceeds to a hearing.

12The material before the Tribunal also raises a question whether the Application constitutes an abuse of process. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

13In this case, the personal respondent, Ms Lalova, alleges that the applicant was charged with criminally harassing her contrary to the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”) in June 2008. Ms Lalova submits that after he was criminally charged, the applicant made up allegations against her, laid a private criminal charge against her (which was withdrawn by the Crown or dismissed by the court) and filed this Application with the Tribunal in retaliation against her for the criminal harassment charge(s). If this is true, then the Application might constitute an abuse of the Tribunal’s processes, in which case, the Tribunal might make orders or give directions to prevent such abuse of process, including, possibly, an order dismissing the Application in whole or in part.

14Finally, I note that the applicant entered into a peace bond on March 2, 2010 pursuant to which he undertook not to have any direct or indirect contact or communication with Ms Lalova for a period of 12 months from the date of the peace bond. The Tribunal does not have jurisdiction over criminal matters. The applicant is ultimately responsible for ensuring that he complies with the obligations in his peace bond, and in particular may wish to seek legal advice with respect to whether the terms of his peace bond limit the applicant’s ability to pursue his Application against Ms Lalova and/or the other respondents.

15I am not seized of this matter.