Human Rights Tribunal of Ontario
BETWEEN:
Rahim Hadani
Applicant
-and-
Kingwest Fitness
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha Date: November 24, 2010 Citation: 2010 HRTO 2334 Indexed as: Hadani v. Kingwest Fitness
1The applicant filed Application 2009-03851-I (“Original Application”) under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on October 21, 2009 alleging discrimination with respect to goods, services and facilities on the basis of race, creed, sexual orientation and association with a person identified by a Code protected ground.
2On May 6, 2010, the applicant filed Application 2010-05622-I (“Second Application”) against the same corporate respondent alleging discrimination with respect to goods, services and facilities and contracts on the basis of race, sexual orientation and association with a person identified by a Code protected ground.
3While both Applications are against the same corporate respondent, Kingwest Fitness, based on a review of the two narratives, it appears that there are two separate owners. The Original Application appears to pertain to events that occurred when the corporate respondent was operated by a former owner in the fall of 2009. While the Second Application arises, in part, from the events forming the basis of the Original Application, it appears that the allegations in the Second Application pertain to decisions made by the new owner in the spring of 2010.
4This Interim Decision addresses the following issues: 1) seeking submissions on consolidation of the two Applications; and 2) deferral.
Consolidation
5Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together. In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:
(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;
(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
(c) Whether there are common issues of fact or law.
6Given the common parties, facts and issues, and potential overlapping interests present in these Applications, the Tribunal directs that the parties to both Applications provide their position on consolidation of the Applications to the Tribunal with a copy to the other parties within 14 days from the date of this Interim Decision. If a party does not consent to consolidation, then it should provide written submissions in support of its position to the Tribunal and the other parties.
Deferral
7Both parties have advised there is an ongoing criminal matter relating to the events set out in the Applications. It appears that the facts in the criminal proceeding, as well as potential witnesses, may overlap, with the facts and evidence in relation to these Applications. Both parties have raised the concern that the applicant is subject to bail conditions which prohibit him from having any direct or indirect contact with the former owner of the respondent.
8Section 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.
9On November 1, 2010 the applicant wrote to the Tribunal. In his letter he indicates his interest in adjourning the Tribunal hearing pending the resolution of the criminal matter. In the circumstances, the respondent is directed to provide its submissions on deferral pending the outcome of the criminal proceeding to the Tribunal with a copy to the applicant within 14 days of the date of this Interim Decision.
10The Tribunal will determine the issues set out above based on the parties’ submissions, or, if the parties do not provide their submissions, on the basis of the materials already before it and/or may issue further directions.
11I am not seized of this matter.
Dated at Toronto, this 24th day of November, 2010.
”signed by”______________
Ena Chadha
Vice-chair