HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Haruyo Taucar Applicant
-and-
The University of Western Ontario, Donna Penne, Lisa Ann Korab and Mitsume Fukui Respondents
A N D BETWEEN:
Haruyo Taucar Applicant
-and-
Kenneth P. Swan Arbitration, Kenneth Swan and The University of Western Ontario Respondents
INTERIM DECISION
Adjudicator: Ena Chadha Date: March 18, 2011 Citation: 2011 HRTO 550 Indexed as: Taucar v. University of Western Ontario
WRITTEN SUBMISSIONS
Haruyo Taucar, Applicant Christopher Taucar, Counsel
The University of Western Ontario, Donne Penne and Lisa Ann Korab, Respondents Barry J. Brown, Counsel
Mitsume Fukui, Respondent Michael Klug, Counsel
Kenneth Swan, Respondent David C. Moore, Counsel
University of Western Ontario Faculty Association, Affected Party John W.T. Judson, Counsel
BACKGROUND
1The applicant filed Application 2010-0542I-I (“Original Application”) under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (“Code”), on April 19, 2010 alleging discrimination and reprisal with respect to employment on the basis of disability. The Original Application names the University of Western Ontario (“University”), Donna Penne, Lisa Ann Korab, and Mitsume Fukui as respondents, and identifies the University of Western Ontario Faculty Association (“Association”) as an affected party.
2On October 25, 2010, the applicant filed Application 2010-07219-I (“Second Application”) alleging discrimination with respect to employment on the basis of race, ancestry, place of origin, citizenship and ethnic origin. The Second Application identifies the University, Kenneth Swan, and Kenneth P. Swan Arbitration (“Swan”), as respondents.
3On January 7, 2011, the Tribunal issued a Case Assessment Direction directing: 1) Swan to indicate a position regarding consolidation of the two Applications; 2) Form 2 Responses to be filed regarding the Second Application; and 3) submissions to be filed with respect to the issue of deferral. This Interim Decision addresses the outstanding matters of consolidation and deferral.
Consolidation
4Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.
5In the Original Application, the applicant alleges that she was discriminated and harassed and denied appropriate accommodation. The Second Application impugns the report of Swan, the investigator appointed as a result of the alleged events in the Original Application. As such, the Second Application relates to allegations forming the basis of the Original Application. There is significant overlap in the facts and issues in these two Applications, as well as duplication of some parties and witnesses.
6In my view, the Applications should be consolidated and processed together. The circumstances of these Applications present a compelling public interest to avoid multiplicity of proceedings, as well as considerations of expense, convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results. See Persaud v. Toronto District School Board, 2008 HRTO 25. Furthermore, there was no evidence that consolidating the Applications together would result in any significant prejudice to party or affected party. Accordingly, the Tribunal orders these Applications be consolidated.
Deferral
7The Tribunal will generally defer an application where there is an on-going legal proceeding based on the same facts and issues. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
8Some 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.
9By way of the earlier Case Assessment Direction, the Tribunal sought clarification about the nature and status of a Judicial Review and a proceeding under the Labour Relations Act involving some of the parties in these two Applications.
10The parties’ submissions indicate that on December 14, 2010, the Ontario Labour Relations Board (“OLRB”) dismissed the applicant’s complaint alleging that the Association violated its duty of fair representation. Although the applicant expressed an intention to do so, no reconsideration has been filed in regards to the OLRB decision.
11The parties’ submissions confirm that the applicant has filed an Application for Judicial Review with respect to the investigation report that is the subject of the Second Application arising out of the Original Application. In the Judicial Review, the applicant seeks to quash the findings of the investigation report and a declaration that the University’s decisions regarding the applicant’s allegations of discrimination and harassment were contrary to natural justice. By way of the Judicial Review, the applicant seeks Orders preventing any further use of the investigation report and a de novo hearing of the applicant’s allegations of discrimination and harassment. The materials indicate that the Judicial Review is likely to proceed in or after April 2011.
12The Application for Judicial Review contains facts and allegations which are identical to the allegations set out in these proceedings and relate to the same parties and witnesses. The Orders sought through the Judicial Review reflect some of the same remedies sought by the applicant in the current Applications. Given that some of the legal issues raised in the Applications and the Judicial Review are similar and arise out of the same factual circumstances, and that there is a possibility of concurrent proceedings, as well as a Divisional Court Order restricting use of the information contained in the investigation report, the Tribunal finds in these circumstances that it is appropriate to defer consideration of this Application pending the conclusion of the Judicial Review proceeding.
13Accordingly, the Tribunal orders the deferral of the Applications pending the conclusion of the Judicial Review proceeding. I note that this Interim Decision does not address the jurisdictional issues raised by Swan in respect of the Second Application, nor is it any indication of the merits of these Applications.
14Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
15I am not seized.
Dated at Toronto, this 18th day of March, 2011.
”signed by”____________________
Ena Chadha Vice-chair