Cloutier Holtz v. Midwives of Sudbury, 2010 HRTO 847

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kim Cloutier Holtz

Applicant

-and-

Midwives of Sudbury, Audrey Janette Batacharya and Association of Ontario Midwives Benefits Trust

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 16, 2010

Citation: 2010 HRTO 847

Indexed as: Cloutier Holtz v. Midwives of Sudbury

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 Midwives of Ontario (“CMO”).

2The applicant is a registered midwife who was working on contract for Midwives of Sudbury. She filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 9, 2009, which alleges that the respondents, Midwives of Sudbury and Audrey Janette Batacharya, discriminated against her with respect to contracts because of her sex.

3Specifically, the applicant alleges that Ms. Batacharya, who is the proprietor of Midwives of Sudbury, refused to renew her annual contract when she requested a maternity leave, and refused to sign her application to the Association of Ontario Midwives Benefits Trust (“AOMBT”), which funds leaves for midwives.

4Two of the respondents, Midwives of Sudbury and Ms. Batacharya, filed a Response on January 13, 2010, which denies the allegations of discrimination, and names the AOMBT as an additional respondent and the CMO as an affected organization.

5Specifically, Ms. Batacharya states that she refused to renew the applicant’s contract because of her poor work performance, and subsequently filed a complaint with the CMO because of the applicant’s failure to adhere to professional standards. She attached a copy of the complaint, which is dated December 29, 2009, to her Response. She states that she refused to sign the applicant’s leave application because the forms were blank and the applicant was no longer a contracted midwife with Midwives of Sudbury.

6Ms. Batacharya also requests that the Tribunal dismiss the Application because the proceeding before the CMO and the applicant’s leave application to AOMBT have appropriately dealt with the substance of the Application. Alternatively, she requests that the Tribunal defer consideration of the Application until after the proceeding before the CMO is concluded.

7The AOMBT filed a Response on February 25, 2010, which requests that it be removed as a respondent because neither the applicant nor the other respondents alleged that it discriminated against the applicant. It states that it paid the applicant parental leave benefits on December 31, 2009, including retroactive benefits. It also requests that the Tribunal defer consideration of the Application until after the proceeding before the CMO is concluded.

8The applicant filed a Reply on March 22, 2010, which states that Ms. Batacharya filed the complaint to the CMO several months after she terminated the applicant’s contract and the applicant filed her Application with the Tribunal, and several years after some of incidents mentioned in the complaint. She further states that she has “no problem” deferring her Application at the Tribunal until after the proceeding before the CMO is concluded.

9In my view, it is premature to consider the request to dismiss the Application and the request to remove a respondent, but there are grounds for deferral. Rule 14.1 of the Tribunal’s Rules of Procedure states 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.

10In Baghdasserians v. 674469 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.

11In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. Although the applicant filed her Application with this Tribunal before Ms. Batacharya filed her complaint about the applicant to the CMO, other factors weigh in favour of deferral, including the potential for duplication of evidence in two concurrent proceedings, the possibility of inconsistent findings of fact and law, and the fact that the applicant consents to the deferral request. In addition, the findings of the CMO, which has expertise in competency issues related to midwives, may assist this Tribunal in determining whether the applicant’s request for a maternity leave was a factor in the termination of her contract.

12Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the proceeding before the CMO.

13Where 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).

14I am not seized of this matter.