Hadani v. Kingwest Fitness, 2011 HRTO 680

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rahim Hadani Applicant

-and-

Kingwest Fitness Respondent

A N D B E T W E E N:

Rahim Hadani Applicant

-and-

Kingwest Fitness, Kevin Knott, Julia Kufel and Kennedy Lodato Respondents

A N D B E T W E E N:

Alexander Purchase Applicant

-and-

Kingwest Fitness, Kevin Knott, Julia Kufel and Kennedy Lodato Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: April 8, 2011 Citation: 2011 HRTO 680 Indexed as: Hadani v. Kingwest Fitness

1On October 21, 2009, the applicant Hadani filed Application 2009-03851-I (“Original Application”) under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination with respect to goods, services and facilities on the basis of race, creed, sexual orientation and association with a person identified by a Code protected ground.

2On May 6, 2010, the applicant Hadani filed Application 2010-05622-I (“Second Application”) against the same corporate respondent and additional personal respondents alleging discrimination with respect to goods, services and facilities and contracts on the basis of race, sexual orientation and association with a person identified by a Code protected ground.

3On May 6, 2010, the applicant Purchase filed Application 2010-05622-I (“Third Application”) against the respondents in the Second Application alleging discrimination with respect to goods, services and facilities and contracts on the basis of race, sexual orientation and association with a person identified by a Code protected ground.

4By way of an earlier Interim Decision, 2010 HRTO 2334, the Tribunal directed the parties of the Original and Second Applications to file submissions with respect to the issue of consolidation and deferral. Subsequently, it came to the Tribunal’s attention that the Third Application was based on events related to the Original and Second Applications. By way of Case Assessment Direction, dated December 2, 2010, the Tribunal directed the parties to the Third Application to also file submissions with respect to the issue of consolidation.

CONSOLIDATION

5The applicants agree to consolidate the Second and Third Applications; however, submit that the Original Application is a separate case involving a previous owner of the corporate respondent and therefore should not be consolidated.

6The respondents in the Second and Third Applications agree that all three Applications should be consolidated.

7Rule 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.

8Based on a review of the narratives, it appears that ownership of the corporate entity changed during the course of the events. The Original Application pertains to events that occurred when the corporate respondent was operated by a former owner in the fall of 2009. The Second Application arises, in part, from the events forming the basis of the Original Application and it appears that the allegations in the Second and Third Applications pertain to decisions made by the new owner in the spring of 2010.

9All parties acknowledge that the circumstances of the Second and Third Application arise out of the facts underlying the Original Application. The applicants confirm that they are witnesses in each other’s cases and that their respective Applications flow from their partnership and association with each other. The respondents similarly indicate that there is a commonality of witnesses in these matters. All three Applications are against the same corporate respondent, Kingwest Fitness.

10In my view, the Applications should be consolidated and processed together. There is significant overlap in the facts and issues in the three Applications, as well as duplication of parties and witnesses. 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 would result in any significant prejudice to a party or affected party. Accordingly, the Tribunal orders these Applications be consolidated.

DEFERRAL

11The 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). The 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, raising the possibility of inconsistent decisions on facts or law.

12The Tribunal has deferred applications where there are on-going criminal proceedings involving the parties where the applicant or the respondent was the party who was criminally charged. See Miller v. Bernard, 2010 HRTO 1488; Bernard v. London Transit Commission, 2010 HRTO 1829 and Hadley v. J.A.C.S. Cartage, 2010 HRTO 516.

13All parties acknowledge that there are outstanding criminal proceedings arising out of the facts of the Original Application involving the parties and witnesses in the Original Application. Although the criminal proceedings relate primarily to the applicant in the Original and Second Applications, the applicant in the Third Application has identified himself as a witness in the Original Application.

14All parties confirm that a restraining order, which is part of the criminal proceedings, underlies the allegations in the Second and Third Applications. Specifically, the respondents to the Second and Third Applications expressly rely on the restraining order as a basis for their defence. Further, bail conditions arising out of the Original Application appear to restrict the communications between some of the parties and/or witnesses and may impact the process of the Tribunal hearing(s) and the parties’ disclosure obligations.

15In sum, it appears that there are significant connections between these three Applications and on-going criminal proceedings. This situation presents a serious concern for the potential for conflicting findings of facts. In these circumstances, it appears that the most fair, just and expeditious approach is to defer consideration of these Applications pending the conclusion of the criminal proceedings.

16Parties to the Original and Second Application were invited to make submissions with respect to the issue of deferral by way of the earlier Interim Decision, 2010 HRTO 2334.

17It appears that the parties to the Third Application may not have been aware that they had an opportunity to make submissions regarding deferral. As such, if any party to the Third Application does not consent to deferral, then that party, within 7 days of the date of this Interim Decision, should provide written submissions in support of its position to the Tribunal and to all other parties. The Tribunal will consider the parties’ submissions, and may determine the issue based on the parties’ written submissions, and/or may schedule future steps accordingly.

18The Tribunal draws the parties’ attention to Rules 14.3 and 14.4 which set out the procedure if a party wishes to proceed with an Application upon the conclusion of another proceeding.

19I am not seized.