The Estate of Kulmiye Aganeh v. Mental Health Centre Penetanguishene, 2011 HRTO 2280

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

The Estate of Kulmiye Aganeh

Applicant

-and-

Mental Health Centre Penetanguishene

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 20, 2011

Citation: 2011 HRTO 2280

Indexed as: Aganeh Estate v. Mental Health Care Penetanguishene

WRITTEN SUBMISSIONS

The Estate of Kulmiye Aganeh, Applicant ) Sunil Mathai, Counsel

Mental Health Centre ) Carole Jenkins, Counsel

Penetanguishene, Respondent )

1This Application was filed on March 12, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to goods, services and facilities on the basis of race, colour, ancestry, ethnic origin, disability and creed. The Application was commenced by the trustee of the estate of Kulmiye Aganeh, the deceased.

2The deceased was a patient at the respondent mental health centre from December 2007 until his death on March 14, 2009. The Application alleges, inter alia, that the deceased received inappropriate treatment because of his race, creed and disability, that the respondent failed to accommodate the deceased’s faith-based needs, the deceased was subjected to reprisal because of his family’s attempts to advocate on his behalf and that the discrimination or reprisal play a factor in the events surrounding his death.

3The respondent filed its Response on September 15, 2011, denying the allegations of discrimination. In its Response, the respondent raises the issue of whether the Tribunal has jurisdiction to deal with an Application brought on behalf of a deceased individual and whether the Application is timely.

4The purpose of this Interim Decision is to deal with whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the other legal proceedings. The Tribunal was informed by the parties that a related civil proceeding and a coroner’s inquest were underway. On November 2, 2011, the Tribunal issued a Notice of Intent to Defer and directed the parties to file submissions as to why consideration of the Application should or should not be deferred pending the resolution of another legal proceeding dealing with the subject matter of the Application.

5The applicant filed submissions on December 1, 2011, opposing deferral. The applicant submits that the coroner’s inquest will simply be making recommendations aimed at the avoidance of death in the type of circumstances giving rise to the death of the deceased, whereas the civil proceeding is a negligence claim asserting assault and medical malpractice. The applicant submits that neither proceeding will address the violation of human rights.

6The respondent filed submissions on December 2, 2011, supporting deferral. The respondent submits that the Tribunal should defer the Application because the coroner’s inquest and the civil claim are based on the same facts and raise similar issues as alleged in the Application. The respondent submits that, given the close relationship between the Application and the two other proceedings, there is a risk of inconsistent findings of facts. The respondent further submits that deferral of the Application pending the outcome of the inquest may result in a narrowing of facts, issues and remedies.

ANALYSIS

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). Deferral of an application ensures that proceedings dealing with the same facts and issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

8The 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. Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

9Based on the parties’ submissions, it appears that the coroner’s inquest is scheduled to commence on February 6, 2012, and will continue to March 9, 2012. There is no dispute that the inquest will examine the events surrounding the deceased’s death, events which compromise of some of the factual allegations in this Application.

10The Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts that parallel the Application. I see no reasons to depart from this approach given the impending concurrent process in the form of the coroner’s inquest and given the public interest in avoiding duplication of administrative proceedings. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438.

11The coroner’s inquest is set to commence in less than two months and it is unlikely that the Application will be scheduled for any steps within the Tribunal’s process prior to the start of the inquest. The inquest will consider the factual circumstances leading up to the death of the deceased and will make recommendations in that regard. I accept the respondent’s submission that the there is a real potential that the facts and issues raised in this present Application may be narrowed by the recommendations from the inquest. In my view, all of these factors favour the exercise of my discretion to defer the Application.

12In light of the concurrent inquest proceeding and the possibility of inconsistent findings of fact, I determine that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the inquest process. However, at this time, I will not consider deferral on the basis of the civil action since no defence has been filed and therefore the civil action is still in the early stages,

ORDER

13Accordingly, the Application is deferred pending the conclusion of the coroner’s inquest.

14The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the inquest proceeding. Given the decision to defer the Application, it is not necessary to consider the respondent’s preliminary issues and these matters may be raised upon reactivation of the Application.

15I am not seized of this matter.