HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Niaomi Fillier
Applicant
-and-
College of Nurses of Ontario
Respondent
INTERIM decision
Adjudicator: Geneviève Debané
Indexed as: Fillier v. College of Nurses of Ontario
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on February 25, 2011.
2On June 8, 2011, the respondent advised the Tribunal that the applicant had filed an appeal on February 21, 2011, to the Health Professions Appeal and Review Board ("HPARB") with respect to the identical issues raised in the Application.
3On June 8, 2011, the Tribunal sent a Notice of Intent to Defer the Application to the parties which advised that they had 30 days to make submissions on the issue of deferral. The respondent filed submissions and case law which supported its position that the Application should be deferred. The applicant did not file any submissions in response to the Notice of Intent to Defer the Application.
4This Interim Decision addresses the issue of whether the Application should be deferred pending the outcome of the appeal before the HPARB.
5The Application alleges discrimination in goods, services and facilities on the basis of disability. The Applicant alleges that the respondent has failed to accommodate her disability by refusing her request to rewrite her nursing examination with certain accommodations.
6The respondent has provided the Tribunal with a copy of the appeal filed by the applicant to the HPARB which asks for the review of the respondent's decision not to permit the applicant to rewrite her nursing examination with the requested accommodation. It is the respondent's position that to permit the Application to proceed at the present time would create the risk of duplicative or conflicting decisions. The respondent also relies on the Tribunal's decisions in Hall v. Sharma, 2010 HRTO 1951, and McPhee v. Collins, 2010 HRTO 2063, in support of its position that the Application should be deferred.
DECISION
7The 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 of the Tribunal's Rules of Procedure). The Tribunal must 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.
8Applying these principles to this case, I agree with the respondent and find that it is appropriate to defer this Application pending the conclusion of the proceeding before the HBARB since the appeal deals with the identical issue raised in the subject matter of the Application. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. Therefore, it is most fair, just and expeditious to defer this Application.
9The Tribunal orders that this Application be deferred pending the conclusion of the HBARB proceeding. The Tribunal directs the parties' attention to Rule 14 which sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.
10I am not seized of this matter.
Dated at Toronto, this 29th day of July, 2011.
"Signed by"
Geneviève Debané
Vice-chair