Bernard v. London Transit Commission, 2010 HRTO 1829

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Bernard

Applicant

-and-

London Transit Commission, Andy Hynes and John Ford

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: September 7, 2010

Citation: 2010 HRTO 1829

Indexed as: Bernard v. London Transit Commission

1This is an Application filed May 21, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of another related proceeding.

2Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an Application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative, or at the request of the parties, defer consideration of an Application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

3The Application contains a Request to Defer pending the resolution of an ongoing criminal matter involving the applicant and dealing with criminal charges relating to the events that are also the subject matter of the Application.

4The Tribunal has received submissions from the respondents in which they set out their objection to the Request to Defer but indicate that should the Tribunal decide to defer, the matter should be deferred pending the conclusion not just of the criminal matter involving Mr. Bernard but also Tribunal File 2009-02782-I, which deals with the same incidents that gave rise to this Application and in which Mr. Bernard is the respondent.

5In a previous Interim Decision with respect to Tribunal File 2009-02782-I (Miller v. Bernard, 2010 HRTO 1488), the Tribunal ordered that the matter would be deferred pending the conclusion of the criminal matter involving Mr. Bernard. That deferral was also at Mr. Bernard’s request.

DECISION

6Deferral 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

7Some 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.

8In this case, the most significant factor is that the facts of the criminal proceeding in which the applicant is the defendant, the other Tribunal matter in which he is the respondent and this Application may overlap. This raises the possibility of inconsistent findings of fact if the Application is not deferred and runs concurrently with the criminal proceeding and the other Tribunal matter.

9This raises the possibility of inconsistent findings of fact if the Application is not deferred and runs concurrently with the criminal proceeding.

10In these circumstances, the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of both the criminal court proceeding and the hearing into Tribunal File 2009-02782-I.

11The 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 after the other proceedings have been concluded.