Sawhney v. Law Society of Upper Canada, 2011 HRTO 656

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ravinder Sawhney

Applicant

-and-

Law Society of Upper Canada, Jan Parnega and Shawn Zuckerman

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: April 5, 2011

Citation: 2011 HRTO 656

Indexed as: Sawhney v. Law Society of Upper Canada

1This is an Application made under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The purpose of this Interim Decision is to determine the applicant’s Request for an Interim Remedy and Request to Expedite Proceedings, filed with his Application, and to seek the parties’ submissions on deferral of the Application. The Tribunal does not require Responses to the Requests from the respondents. Based on the applicant’s materials, the Requests are denied.

2The applicant is a lawyer and member of the respondent organization (the LSUC). The Application alleges that the respondents discriminated against the applicant in the area of goods, services and facilities and membership in a vocational association, on the grounds of race and ethnic origin, in failing to properly investigate complaints he made against other members of the LSUC and pursuing an investigation of professional misconduct allegations against him. The applicant also alleges a reprisal under the Code.

3The LSUC has scheduled a hearing starting on April 11, 2011, to consider the allegations of professional misconduct. The Application as well as the Request for an Interim Remedy asks the Tribunal to order a stay of this hearing.

4Rule 23.2 of the Tribunal’s Rules of Procedure, relating to requests for interim remedies, states:

Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

5Rule 23.3(b) of the Tribunal’s Rules of Procedure requires that a Request for Interim Relief be accompanied by, “one or more declarations signed by the persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies”. As his Declaration, the applicant relies on his answers to the questions in Form 16, which he has signed. His answers to the Form 14 Request to Expedite also appear to form part of his submission on the Request for an Interim Remedy. Although much of this material is more in the nature of argument than a description of the facts relied on, given my findings below it is unnecessary to determine whether the applicant is in compliance with this Rule.

6Normally, the Tribunal’s power to order respondents to do or refrain from doing something is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated. The fundamental consideration in determining whether to award an interim remedy is whether it is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found. For these reasons, an applicant has a significant onus to meet in demonstrating that the Request meets the three elements in Rule 23.2. See TA v. 60 Montclair, 2009 HRTO 369; Homonay v. Workplace Safety and Insurance Board, 2009 HRTO 1495; Thomas v. Toronto Transit Commission, 2010 HRTO 2105.

7The Tribunal has also stated that an applicant’s delay in making a request for an interim remedy is a factor militating against the granting of the remedy. See Williams v. Iroquois Falls (Town), 2010 HRTO 2350.

8I will assume for the present purposes, without deciding, that the Application meets the first criterion in Rule 23.2 above. I will comment that the applicant’s assertions of discrimination are sweeping and largely unparticularized and he may be required at a later stage to provide further particulars. In the circumstances of this case, it has not been established that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.

9First, I am not convinced that the Tribunal has the authority to grant a stay of a proceeding before another administrative body, undertaken under its own statutory mandate. The applicant has stated that a “decision at the Society has already been recently made not to stay the hearing”. If this is the case, for the Tribunal to grant the applicant’s Request would amount effectively to usurping the role of another statutory decision-making body in controlling its own processes, and of the courts, in supervising statutory decision-makers. Without coming to a definitive conclusion on the question of the Tribunal’s authority to take such a step, it certainly should not be made in any but the most clear and compelling of circumstances, which I find do not exist here.

10The applicant is free to raise his allegations of discrimination before the LSUC’s hearing panel, and to challenge any decision in the courts if he believes the process or outcome is unfair. I therefore do not place much weight on the applicant’s assertion that he would suffer irreparable harm and that “there would be no potential for reversal of the injustice” if the hearing were to proceed.

11Second, I also note that the applicant claims that he has experienced discrimination at the hands of the respondents “for the last 3 years or so continuously”. His delay in seeking a stay of the hearing at this late date is also a factor weighing against granting the extraordinary relief sought.

12The applicant’s Request for an Interim Remedy is therefore denied.

13The Request to Expedite is also denied. The Request does not in fact seek any changes to the Tribunal’s processes, nor explicitly request that this Application be dealt with an expedited basis and in preference to other applications before the Tribunal. Indeed, the relief sought in the Request to Expedite is again that the Tribunal order a stay of the hearing before the LSUC. Based on the material before me, I see no basis for ordering expedition in the processing of this Application.

DEFERRAL OF THE APPLICATION

14Given that the respondent is about to begin a hearing that may deal with some of the facts and issues raised in this Application, the Tribunal will seek submissions from the parties about whether it is appropriate to defer the Application pending the completion of the professional misconduct hearing before the respondent.

15Rule 14.1 of the Tribunal’s Rules of Procedure states that the 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. The 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.

16In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be 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 type 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.

17The Tribunal requests that the parties provide written submissions that address whether the Tribunal should defer consideration of the Application pending the outcome of the proceedings before the respondent’s hearing panel.

18On March 28, 2011 the applicant delivered a Notice of Constitutional Question to the Tribunal, Discipline Counsel at the LSUC and the Attorneys General of Ontario and Canada. Nothing contained in the Notice changes the conclusions reached in this Interim Decision. On March 31, 2011, the applicant sent additional submissions in support of his Request for an Interim Remedy. I have reviewed the submissions and they do not support the order he seeks. To the extent the applicant appears to be seeking additional orders, for productions of documents, he has provided no basis for such orders of this stage of the process. I have also received the “Lawyer’s Factum” submitted by the applicant on April 4, 2011, which provides no basis for altering my conclusions.

19The Tribunal therefore makes the following Order:

(a) The respondents are directed to deliver to the applicant and file with the Tribunal by April 19, 2011 written submissions, including documents and case law, if any, which address the deferral issue.

(b) The applicant is directed to deliver to the respondents and file with the Tribunal by May 3, 2011 written submissions, including documents and case law, if any, in response.

20The respondents will be sent a copy of the Application, Request for an Interim Remedy and Request to Expedite Proceedings along with this Interim Decision, as well as the applicant’s submissions of March 31, 2011. They are not required to file Responses to the Application pending further direction from the Tribunal.

21I am not seized of the matter.