Longtin v. McArthur Family Medical Centre, 2010 HRTO 1844

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Longtin

Applicant

-and-

McArthur Family Medical Centre and Dino Smiljic

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 9, 2010

Citation: 2010 HRTO 1844

Indexed as: Longtin v. McArthur Family Medical Centre

WRITTEN SUBMISSIONS BY

Christine Longtin, Applicant ) Self-represented

McArthur Family Medical Centre ) Chantal Tourigny, Counsel

and Dr. Dino Smiljic, Respondents )

Reasons for Decision

1The purpose of this Interim Decision is to decide whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of proceedings under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended (the "RHP Act").

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on September 30, 2009, which alleged that the respondents discriminated against her with respect to employment, housing and services because of her disability, family status, marital status, and association with a person identified by a Code ground, and subjected her to reprisal.

3On December 4, 2009, the respondents filed Responses, which denied the allegations of discrimination and reprisal.

4The Tribunal issued an Interim Decision, 2010 HRTO 961, on April 30, 2010, which requested written submissions with respect to the issues of jurisdiction (the timeliness of the Application) and deferral. Both parties filed written submissions.

5Rule 1.7(g) of the Tribunal's Rules of Procedures authorizes the Tribunal to determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined.

6In my view, the first preliminary issue that should be considered and determined is whether the Tribunal should defer consideration of this Application pending the conclusion of proceedings under the RHP Act.

7There is no dispute between the parties that the applicant filed a complaint with the College of Physicians and Surgeons before she filed her Application with this Tribunal, that her complaint and her Application both relate to the same incidents that occurred in 2007, that the main difference between her complaint and her Application is that the former alleges professional misconduct while the latter alleges discrimination, and that her complaint to the College is at a more advanced stage.

8The respondents submit that the Tribunal should defer the Application because the subject matter of the applicant's complaint before the College is identical to this Application.

9The applicant submits that the Tribunal should not defer the Application because her complaint before the College relates to patient care and public safety, not discrimination.

10Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal's Rules of Procedure. Rule 14.1 of the Tribunal's Rules provides that 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. The Tribunal will 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.

11In Baghdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some 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.

12In my view, deferral is the most fair, just and expeditious way of proceeding with the Application because of the potential for duplication of evidence in two concurrent proceedings, and the possibility of inconsistent findings of fact and law. Furthermore, the fact that the applicant's complaint before the College does not specifically raise allegations of discrimination is outweighed by the fact that her complaint and her Application both relate to the same incidents, and her complaint before the College is at a more advanced stage.

13Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of proceedings before the College of Physicians and Surgeons and any related reviews or appeals.

14Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4). The Tribunal will address the issue of jurisdiction, if necessary, if the Application is reactivated.