Steven Klein v. 2225191 Ontario Inc., 2011 HRTO 1420

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Klein

Applicant

-and-

2225191 Ontario Inc., Lauderdale Point Marina & Resort Inc., James William Lewis, George Timpson, Albert Graves and Les Hartle

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: July 28, 2011

Citation: 2011 HRTO 1420

Indexed as: Klein v. 2225191 Ontario

WRITTEN SUBMISSIONS BY:

Steven Klein, Applicant ) Self Represented )

2225191 Ontario Inc., ) Lauderdale Point Marina & Resort Inc., ) James William Lewis, George Timpson, ) Andrew Mae, Counsel Albert Graves and Les Hartle, Respondents )

BACKGROUND

1This is an Application filed March 22, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleging discrimination with respect to contracts on the basis of ethnic origin and creed. The Application seeks monetary compensation for losses incurred by him ("special damages"), as well as "compensation for loss of the right to be free from discrimination, including the insult to my dignity" ("general damages"). On June 30, 2011, the respondents filed a Response and Notice of Request to Defer pursuant to Tribunal Rule 14.

2The basis for the Notice of Request to Defer is an Ontario Superior Court (Small Claims Court) Statement of Claim issued by the applicant against the respondents on April 20, 2011. The Statement of Claim alleges breach of contract and wrongful eviction by the respondents. The civil action claims both special damages and damages for, "...emotional and psychological harm as a result of...being deprived of the use and enjoyment of Property in accordance with the verbal lease". Although the timetable for the civil action is not certain, it does appear that the parties are fully engaged in taking steps to pursue it.

3On July 20, 2011, the applicant filed submissions in opposition to the deferral of the Application stating:

The subject matter of the Applicant's Small Claims Court action is the narrow question of whether or not the Applicant had a legally binding contractual lease with the Respondent, and if so, whether the contractual lease was in fact breached by the Respondent. The Small Claims Court will not deal with human rights issues of discrimination, nor will it address any issues arising to the Respondents' alleged contravention of the Code, as stated in the Application....

The Applicant has already been prejudiced by the delay in bringing this matter to hearing. Any further delay or deferral would be onerous, and would adversely affect the fair and just resolution of the merits of the Application.

DECISION

4The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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: Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779 and Tanney v. Leon Rivilin Medicine Corporation, 2011 HRTO 1315.

5In the present case, there are factors weighing against deferral. For example, the Application and Civil Action deal with different legal theories i.e., the Civil Action makes no mention of the Code. However, a deferral under section 45 of the Code does not require the conclusion that the other proceedings must potentially dispose of all of the issues in the Application, see Bradshaw v. Complex Services, 2010 HRTO 1215 and Chowdhury v. Burger King Restaurants of Canada, 2011 HRTO 674.

6The close relationship between the facts and issues in the two proceedings strongly favours deferral. The key issue at the heart of the Civil Action, the allegation that the respondents unlawfully terminated the applicant's trailer park lease, is also the central issue covered by the Application. The outcome of the Civil Action may have a particular bearing on the key issue of compensation for the cost of removal and relocation of the applicant's trailer in the event that the applicant succeeds in showing an infringement of his Code-protected rights at the Tribunal, see, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053 and Chowdhury above. In my view, the considerable factual overlap between the two proceedings, the potential for the Court to determine some of the issues in this Application, the rational and orderly litigation of the various issues between the applicant and her employer favour deferral, see O'Brien v. Burlington (City), 2009 HRTO 1818.

7Finally, while the applicant may be frustrated with the length of time the Tribunal and Small Claims Court processes have taken, this is not a sufficient reason to proceed with the Application in all the circumstances, see Law v. Organizational Solution, 2010 HRTO 1158, Rego v. Mount Sinai, 2011 HRTO 458 and Rodrigues v. Toronto (City), 2011 HRTO 1307.

ORDER

8I find that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant's Civil Action. The parties' attention is directed to Tribunal Rules 14.3 and 14.4, which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with the Application after the conclusion of the Civil Action.

9I am not seized.