Hadley v. J.A.C.S. Cartage, 2010 HRTO 226

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: February 1, 2010

Citation: 2010 HRTO 226

Indexed as: Hadley v. J.A.C.S. Cartage

1In this Application filed on June 24, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), the applicant alleges that the respondents discriminated against him on the basis of sex, age and reprisal in respect of employment.

2The corporate respondent and the personal respondent, Craig Wedgbury, have requested the early dismissal of the Application on the following bases:

1. that another proceeding has in whole or in part appropriately dealt with the substance of the Application within the meaning of section 45.1 of the Code;
2. that the Application does not contain allegations of an infringement on a prohibited ground under the Code;
3. that the Application should be dismissed as frivolous, vexatious or as having been commenced in bad faith pursuant to s. 4.6(1)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended ("SPPA"); and
4. that the corporate respondent is not a proper party to this claim.

3The personal respondent, Roumiana Lalova, filed her own Response to the Application and also requests that the Application be dismissed pursuant to s. 45.1 of the Code.

4This Interim Decision determines the respondents' request that the Application be dismissed pursuant to s.4.6(1)(a) of the SPPA and s. 45.1 of the Code. In light of the information provided by the respondents regarding an outstanding criminal charge against the applicant, it also seeks submissions from the parties with respect to whether the Tribunal ought to defer consideration of the Application, pending completion of the criminal proceedings.

Request to Dismiss as Frivolous, Vexatious and Commenced in Bad Faith

5The respondents ask that the Tribunal dismiss the Application as frivolous, vexatious or as having been commenced in bad faith pursuant to section 4.6(1)(a) of the SPPA. The relevant section states:

4.6(1) Subject to subsections (5) and (6), a tribunal may dismiss a proceeding without a hearing if,

(a) the proceeding is frivolous, vexatious or is commenced in bad faith...

6Section 4.6(6), referred to in s. 4.6(1)(a), above, states:

(6) A tribunal shall not dismiss a proceeding under this section unless it has made rules under section 25.1 respecting the early dismissal of proceedings and those rules shall include,

(a) any of the grounds referred to in subsection (1) upon which a proceeding may be dismissed;

(b) the right of the parties who are entitled to receive notice under subsection (2) to make submissions with respect to the dismissal; and

(c) the time within which the submissions must be made.

7Section 4.6(1)(a) of the SPPA does allow Tribunals to dismiss applications on the basis that they are frivolous, vexatious or have been commenced in bad faith, but only if the Tribunal has made a Rule to that effect pursuant to section 25.1 of the SPPA. The Tribunal has not made such a Rule. Accordingly, I find that the Tribunal does not currently have the power to dismiss an Application as "frivolous, vexatious or [as having been] commenced in bad faith" pursuant to s. 4.6(1)(a) of the SPPA.

8I note further that the provisions of the Code as it read prior to June 30, 2008, allowed the Ontario Human Rights Commission to decide not to deal with complaints if they were "frivolous, vexatious, or made in bad faith." However, the Code was amended, effective July 1, 2008, enabling applicants to file their Applications directly with the Tribunal. The new Code does not contain a provision which allows the Tribunal to dismiss or otherwise refuse to deal with Applications on the basis that they are frivolous, vexatious or as having been commenced in bad faith.

9The respondents' request that the Application be dismissed as frivolous, vexatious or as having been commenced in bad faith is denied.

Request to Dismiss because Another Proceeding has Appropriately Dealt with the Substance of the Application (Section 45.1)

10The applicant alleges that he worked for the corporate respondent as a truck driver from 2006 until 2008. He alleges that he was harassed by a coworker and one of the personal respondents, Roumiana Lalova, from February 2007 until December 2008. The applicant also alleges that he was physically assaulted by Ms Lalova and that, in November 2008, he laid a private assault charge against her pursuant to the Criminal Code, R.S.C. 1985, c. C-46 ("Criminal Code"), which he acknowledges is no longer being pursued by the Crown. The applicant alleges that his employment with the corporate respondent was terminated contrary to the Code in December 2008.

11Ms Lalova, in her Response, points out that the applicant was charged in June 2008 with criminally harassing her contrary to the Criminal Code. Ms Lalova alleges that after the applicant was charged with criminally harassing her, he started to make up accusations against her, laid the private criminal charge against her, and filed this Application to the Tribunal. Ms Lalova denies that she ever harassed the applicant. Rather, she submits that the applicant began calling her names, leaving notes for her, and stalking her after she rejected his advances at work, which led to the charges against him.

12The corporate respondent and the personal respondent, Craig Wedgbury, a director of the corporation, submit that the applicant's employment was terminated solely for economic reasons and that the corporate respondent did nothing to violate the applicant's rights under the Code.

13The respondents submit that the assault charge which was laid against Ms Lalova was dismissed by the courts, and that the criminal charge against the applicant is still pending. The respondents submit that the criminal proceedings have appropriately dealt with the substance of the Application and that the Tribunal dismiss the Application pursuant to s. 45.1 of the Code.

14Section 45.1 of the Code reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

15The Tribunal has stated that section 45.1 should be considered in two parts: (a) where there was another "proceeding", and (b) if so, whether it "appropriately dealt with" the substance of the Application. See Carlos v. 1174364 Ontario, 2008 HRTO 403.

16In this case, even if the criminal proceedings in respect of one or both of the alleged charges constitute a "proceeding" for the purposes of section 45.1 of the Code, I am not satisfied that the substance of this Application has been "appropriately dealt with" by those proceedings.

17The issue in the criminal court proceedings against Ms Lalova was whether she assaulted the applicant within the meaning of the Criminal Code. Apparently, that charge has either been dismissed by the Court or was withdrawn by the Crown. There is nothing before me that could lead me to conclude that the applicant's allegations that he was sexually harassed by his coworker and that his employment was terminated contrary to the Code were decided or otherwise dealt with in any criminal proceeding against Ms Lalova.

18With respect to the criminal proceeding against the applicant, the corporate respondent submits that it is ongoing. Accordingly, even if that proceeding deals with the allegations in the Application, I cannot find that it "has appropriately dealt with" the substance of the Application because it has not yet concluded. In all of the circumstances, the respondents' Request for early dismissal of the Application under s. 45.1 is denied at this time on the basis that it is premature. However, once the criminal proceedings against the applicant have concluded, the respondents may wish to consider whether to ask the Tribunal, at that time, to dismiss the Application on the basis that the criminal proceeding has appropriately dealt with the substance of the Application.

Deferral of Application

19In all of the circumstances, it appears to the Tribunal that it may be appropriate to defer consideration of the Application, pending completion of the criminal proceeding against the applicant.

20The 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 (Rule 14.1). 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.

21In this case, there are ongoing criminal proceedings in which the applicant is charged with criminally harassing one of the personal respondents in the same time frame during which he alleges that she harassed him contrary to the Code. It seems to the Tribunal that the facts in the criminal proceeding may overlap, perhaps significantly, with the facts alleged by the parties to this Application. This raises the possibility of inconsistent findings of fact if the Application is not deferred and runs concurrently to the criminal proceeding.

22Rule 14.2 of the Tribunal's Rules of Procedure states that, where the Tribunal intends to defer consideration of an Application under Rule 14.1, it will first give the parties notice of its intention to consider deferral of the Application and an opportunity to make submissions.

23Accordingly, the Tribunal directs that the respondents send to the other parties and file with the Tribunal their submissions with respect to whether the Application ought to be deferred, pending the outcome of the criminal proceeding against the applicant, within 10 days of the date of this Interim Decision. The applicant is directed to send his submissions with respect to deferral to the other parties and to the Tribunal within 20 days of the date of this Interim Decision.

24The Tribunal will make a decision regarding whether the Application ought to be deferred once it receives and considers the parties' submissions on the issue.

Whether the Application raises allegations that Code has been breached and whether the corporate respondent is a proper party to the proceeding

25Having reviewed the materials before me, I find that it is most fair, just and expeditious to determine whether the Application ought to be deferred before determining the remaining requests of the respondents.

26I am not seized of this matter.