HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wallace Barnes
Applicant
-and-
Edward Vivoda
Respondent
INTERIM DECISION
Adjudicator: David Muir
Date: January 5, 2011
Citation: 2011 HRTO 27
Indexed as: Barnes v. Vivoda
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), dated May 12, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on May 12, 2008.
2The hearing in this matter is currently scheduled to proceed in London on January 18, 2011. The purpose of this Interim Decision is to address the respondent's request for deferral of the hearing of this matter pending a determination by the Inquiries, Complaints and Reports Committee ("ICRC") of the College of Physicians and Surgeons of Ontario (the "College").
3By letter dated December 6, 2010, the Tribunal noted that in its materials, the respondent had made reference to the applicant having filed a complaint with the College, and requested submissions as to the status of this complaint and whether the hearing in this matter ought to be deferred pending the outcome of that complaint.
4The Application alleges discrimination because of race and colour in respect of services contrary to sections 1 and 9 of the Code, arising out of the attendance by the applicant at the respondent doctor's office on September 28, 2006.
5The applicant also initiated a complaint with the College on or about January 15, 2007. The respondent was notified of the complaint on or about February 20, 2007 and met with a College investigator on February 21, 2007 to review the concerns raised by the applicant. Subsequently, by letter dated May 24, 2007, the College investigator reported that she understood that she had successfully resolved the applicant's concerns and the applicant was not going to proceed with the complaint. The letter states that the file had been approved for closure by management.
6However, on or about March 18, 2010, the College investigator contacted the respondent to advise that the applicant had requested that his complaint be re-opened, and this was confirmed by letter dated March 16, 2010 from the College. The respondent was advised to provide a written response to the complaint, and that the matter would proceed to the ICRC for a decision as to what, if any, action to take concerning the complaint. The respondent was further advised that either party would be at liberty to appeal the ICRC decision by way of a Request for Review by the Health Professions Appeal and Review Board ("HPARB").
7The respondent states that the applicant requested that his complaint be deferred pending the disposition of his Application before this Tribunal. However, the College apparently does not have any deferral procedure, and its practice is to list the matter for review by the ICRC as soon as the investigation is complete. The respondent states that the applicant's complaint to the College has not yet been listed for disposition by the ICRC, but that he has been advised by the College that the investigation is complete and the matter is ready for disposition. The respondent states that the applicant's complaint listed for review by the ICRC on February 16, 2011.
8The respondent takes the position that, as the College complaint was filed first, considered resolved, but then recently revived by the applicant at his request, the only fair and reasonable outcome in the circumstances is to defer the Application before this Tribunal until a final determination of the College matter. The respondent relies upon this Tribunal's decisions in McPhee v. Collins, 2010 HRTO 2063 and Hall v. Sharma, 2010 HRTO 1951 for the proposition that, as the College complaint has been reactivated and is still moving forward for disposition, the most fair, just and expeditious way of proceeding is to defer this Application due to the duplication of evidence in the two proceedings and the possibility of inconsistent findings of fact and law.
9The applicant states that he understands that his complaint to the College is currently on hold pending the outcome of the hearing before this Tribunal on January 18, 2011. The applicant further states that the College will be carrying out a separate investigation with respect to a portion of the allegations along with issues pertaining to improper disclosure of personal health information and professional misconduct. While the applicant does not expressly state that he opposes deferral, it is clear from his submissions that he contemplates the hearing in this matter proceeding as scheduled on January 18, 2011.
10Having considered the submissions of the parties and the caselaw cited by the respondent, it is my view that in the specific circumstances of this case, deferral would not be the most fair, just and expeditious manner of proceeding. I am particularly concerned that the Application before this Tribunal is at a very advanced stage: the hearing in this matter has been scheduled for January 28, 2011, having previously been scheduled for May 27, 2010 and December 10, 2010, and adjourned both times at the parties' requests; that at this stage all parties have fully complied with their pre-hearing obligations, including the filing of witness statements and documents; and that summonses to witnesses have been served by all parties.
11In contrast, while it is correct that the College complaint was filed first by the applicant, it remained in abeyance for almost three years and has only recently been reactivated. While the College has advised the respondent that the investigation is complete and the matter referred to the ICRC, any determination reached as a result of the ICRC review may result in a further appeal to the HPARB by either party, causing further delay to this proceeding.
12This is different from the situation in McPhee v. Collins, supra, where the Application before this Tribunal had only recently been filed and the proceeding was therefore at a very preliminary stage. It is also different from Hall v. Sharma, supra, where, while a hearing before this Tribunal had been scheduled, the ICRC review already had been completed and proceedings before the HPARB were already ongoing.
13While I appreciate the concerns about duplication of evidence and potentially inconsistent findings of fact and law, one proceeding or another needs to go first and the results of the first proceeding may inform whether and in what manner the later proceeding goes forward. In this case, given the very advanced stage of the proceeding before this Tribunal in contrast to the relatively early stage of proceedings before the College and potentially the HPARB, it is my view that the hearing in this matter should proceed as scheduled.
14For all of these reasons, the respondent's Request for deferral is denied.
Dated at Toronto, this 5th day of January, 2011.
"signed by"_________
David Muir
Vice-chair