HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary Traversy Applicant
-and-
Erin District Lions Club Inc. and Derek Bloomfield Respondents
A N D B E T W E E N:
Sarah Traversy Applicant
-and-
Erin District Lions Club Inc. and Derek Bloomfield Respondents
INTERIM DECISION
Adjudicator: Ena Chadha Date: March 16, 2011 Citation: 2011 HRTO 525 Indexed as: Traversy v. Erin District Lions Club
1These two Applications were filed under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended ("Code"), on April 16, 2010, alleging discrimination and reprisal with respect to services, goods and facilities on the basis of sex (gender). The applicants are sisters and both Applications are against the same respondents arising out of the same set of circumstances.
2The respondents filed their Responses on December 20, 2010, in which they request the Tribunal to dismiss the Applications because another proceeding has appropriately dealt with the substance of the Applications.
3The applicants filed their Replies on March 7, 2011, stating that no other proceeding has dealt with the substance of the Applications. Further, in correspondence with the Tribunal and copied to the respondents, the applicants allege that the respondents' legal representative is in a position of conflict of interest.
4This Interim Decision addresses the following issues: 1) the requests to dismiss; 2) consolidation of the two Applications; and 3) alleged conflict of interest.
Requests to Dismiss
5The respondents submit that the Applications should be dismissed because another Application, specifically Traversy v. Holtom's Bakery Tribunal file 2010-05577-I, has addressed the current Applications. Application 2010-05577-I alleged that Mary Traversy, an applicant in the current matter, was subjected to reprisal by her former employer because she exercised her right to complain about gender discrimination in regards to the current proceedings.
6Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. [emphasis added]
6There is no information or evidence before the Tribunal upon which I can find that the subject-matter of the current proceedings is the same or substantially the same as Application 2010-05577-I and that resolution of Application 2010-05577-I "appropriately dealt with" the substance of the current Applications. While there appears to be some factual overlap, there is no basis to conclude that a resolution of Application 2010-05577-I, which was an employment case, appropriately resolved the substance of the current Applications, which involve alleged discrimination in the social area of goods and services. The respondents' Requests for early dismissal of these two Applications are denied.
Consolidation
7Rule 1.7(d) of the Tribunal's Rules of Procedure states that, to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together. In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:
(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;
(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
(c) Whether there are common issues of fact or law.
8Given the common parties, facts and issues, and overlapping interests present in these Applications, the Tribunal directs that the parties to provide their position on consolidation of the Applications to the Tribunal, with a copy to the other parties, within seven days from the date of this Interim Decision. If a party does not consent to consolidation, then it should provide written submissions in support of its position to the Tribunal and the other parties.
Alleged Conflict of Interest
9The applicants appear to allege that the law firm representing the respondents is in a position of conflict of interest because the law firm was privy to information pertaining to the current Applications as a result of consultations regarding other human rights matters. The respondents deny the alleged conflict of interest. Nevertheless, the parties have also indicated that they are amenable to participating in mediation.
10Within seven days from the date of this Interim Decision, the applicants are required to write to the Tribunal, copied to the respondents, indicating 1) whether, notwithstanding the alleged conflict, they wish to proceed with mediation, or 2) the specific facts, issues and concerns with respect to the alleged conflict of interest.
11If, at this stage, the applicants indicate they wish to pursue the conflict of interest allegations, the respondents are directed, within seven days of receipt of the applicant's submissions, to provide to the Tribunal a written response, copied to the applicants, with respect to their submissions regarding the allegations of conflict of interest.
12The Tribunal will determine the issues set out above based on the parties' submissions, or, if the parties do not provide their submissions, on the basis of the materials already before it and/or may issue further directions. If the parties confirm their interest in participating in mediation, mediation will be scheduled in the normal course.
13I am not seized of these matters.
Dated at Toronto, this 16th day of March, 2011.
"signed by"________________
Ena Chadha Vice-chair