Matthew Deveaux v. X-Fitness, 2010 HRTO 1571

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Deveaux

Applicant

-and-

X-Fitness

Respondent

INTERIM decision

Adjudicator: Brian Eyolfson Date: July 20, 2010 Citation: 2010 HRTO 1571 Indexed as: Deveaux v. X-Fitness

1This is an Application filed July 16, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination on the basis of race and colour in the areas of membership in a vocational association and goods, services and facilities. The respondent filed a Response to the Application on November 20, 2009, and the applicant filed a Reply on February 12, 2010.

2In an Interim Decision, 2010 HRTO 507, the Tribunal sought submissions from the parties on whether or not the Application should be deferred pending the outcome of criminal proceedings, as it appeared that the applicant may have been charged with criminal harassment in relation to the events set out in the Application.

3The applicant’s counsel submitted that there are criminal charges against the applicant but the charges arise from alleged incidents in February 2010, and are in a different time-frame than the subject matter of the Application. Further, the substance of the issues in the criminal charges is different from the subject matter of the Application.

4Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, or on the request of a party. 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.

5The initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same human rights issues are being raised before another decision-maker with the authority to deal with those issues. Other applications before the Tribunal may raise facts or issues which overlap with those in other concurrent proceedings, but in which human rights issues are not clearly engaged. In those cases, in exercising its discretion to defer, the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it. See Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 966 at paras. 13-14.

6In his Application, the applicant alleges that the respondent terminated his gym membership for no reason. He also states that, “They are lying saying I was threatening people”. In the respondent’s Response, the respondent’s contact person submits that the applicant has engaged in threatening and harassing behaviour towards her, her family, and the respondent’s patrons. It appears that there are ongoing criminal proceedings involving the applicant and the contact person for the respondent and that the applicant has been charged with harassing the contact person for the respondent.

7While the criminal charges occurred after the filing of the Application, it appears that the subject matter of both the criminal proceeding and the Application involve allegations that the applicant has engaged in harassment of the contact person for the respondent. The facts in the criminal proceeding, therefore, may overlap with the facts alleged by the parties in the Application. This raises the possibility of inconsistent findings of fact if the Application is not deferred and runs concurrently with the criminal proceeding.

8In addition, it appears that there may be conditions related to the criminal proceeding which preclude the applicant from contacting the contact person for the respondent, and being within a certain distance of her, which may affect the proceeding before the Tribunal.

9In the circumstances, deferral of the Application is appropriate, pending the conclusion of the criminal proceeding involving the applicant and the respondent’s contact person.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which the Application may be brought back on before the Tribunal after the criminal proceeding has concluded. If the criminal proceeding has already concluded, and either party wishes to have the Application brought back on before the Tribunal, they shall make such a request within 60 days of the date of this Interim Decision.

11I am not seized of this matter.