McPhee v. Collins, 2010 HRTO 2063

Human Rights Tribunal of Ontario

B E T W E E N:

Rose McPhee Applicant

-and-

David Collins Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: October 8, 2010 Citation: 2010 HRTO 2063 Indexed as: McPhee v. Collins

WRITTEN SUBMISSIONS BY

Rose McPhee, Applicant (Self-represented) Dr. David Collins, Respondent (David Winnitoy, Counsel)

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 a proceeding before the College of Physicians and Surgeons of Ontario ("College").

2The applicant was a patient under the care of the respondent. She filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") on February 18, 2010, which alleges that the respondent discriminated against her with respect to services because of her race, ancestry, ethnic origin, and disability, and subjected her to reprisal.

3The applicant filed an identical complaint with the College on February 3, 2010. She opposes the deferral of her Application pending the conclusion of the proceeding before the College on the basis that she believes that the respondent discriminated against her and denied her services based on her race.

4The respondent filed a Response on June 4, 2010, which denies the allegations of discrimination and reprisal, and requests that the Tribunal defer the Application until the proceeding before the College is completed.

5Section 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.

6In 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.

7In my view, deferral is the most fair, just and expeditious way of proceeding with the Application because the applicant filed her complaint with the College first, and it is at a more advanced stage, and her complaint to the College and her Application with the Tribunal are identical, which raises the potential for duplication of evidence in two concurrent proceedings, and the possibility of inconsistent findings of fact and law.

8Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the proceeding before the College and any related reviews or appeals.

9Where 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).

10I am not seized of this matter.