Lubov Volnyansky v. The Regional Municipality of Peel, 2011 HRTO 833

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lubov Volnyansky Applicant

-and-

The Regional Municipality of Peel Respondent

Interim DECISION

Adjudicator: Alison Renton Date: April 28, 2011 Citation: 2011 HRTO 833 Indexed as: Volnyansky v. Peel (Regional Municipality)

APPEARANCES

Lubov Volnyansky, Applicant ) Self-represented ) Regional Municipality of Peel, Respondent ) Ann Dinnert, Counsel

1This Application was filed on April 27, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent Regional Municipality of Peel (“Peel”) discriminated against her on the basis of family status, marital status and reprisal or threat of reprisal in respect of goods, services and facilities.

2Specifically, the applicant alleges that Peel did not recognize her as a separated parent with three dependents and in that regard, improperly calculated her shelter allowance which created an overpayment which it then threatened to collect. The issue went before the Social Benefits Tribunal (“SBT”) which denied both her appeal and her reconsideration appeal. She alleges that she has been deprived of the right to have a fair hearing before an independent and impartial tribunal.

3Initially, the applicant named the Ministry of Community and Social Services (“the Ministry”) and Peel as respondents.

4Peel filed a Response and requested that the Application be dismissed against it under section 45.1 of the Code because another proceeding has appropriately dealt with the substance of the Application.

5The applicant filed a Reply and submitted that she raised Code issues of discrimination before the SBT, and in a subsequent letter to its Chair, but the Code issues were not addressed by the SBT.

6In an Interim Decision dated May 25, 2010, 2010 HRTO 1171 (“the Interim Decision”), the Tribunal dismissed the Application as against the Ministry and scheduled a half-day conference call hearing to determine whether the Application should be dismissed against Peel on the basis that the SBT had already appropriately dealt with the substance of the Application. The parties were directed to file submissions in advance of the conference call hearing.

7Both parties filed submissions as directed. Included in Peel’s submissions were copies of a Notice of Appeal and Factum which the applicant filed with the Ontario Divisional Court in relation to her SBT proceedings.

8Upon review of the submissions, the Tribunal issued a Case Assessment Direction (“CAD”) dated September 14, 2010, in which it advised the parties that the conference call hearing would be converted to an in-person hearing. It also directed the parties to be prepared to address additional issues, including whether the Tribunal ought to defer the Application in light of the applicant’s proceeding before the Divisional Court and whether the Application was filed outside the one-year limitation period required by section 34(1) of the Code, and if so, whether the applicant’s delay in filing her Application was made in good faith as required by section 34(2).

9The hearing was held on September 17, 2010 (“the hearing”), and both parties participated, the applicant participating through a Russian interpreter. At the commencement of the hearing, the applicant advised that she had only found the CAD that morning because it was in the “junk box” on her email system. The Tribunal asked if she was in a position to make submissions on the issues identified in the Interim Decision and the CAD. The applicant stated that she was and the hearing continued.

Deferral

10It was not disputed that subsequent to filing this Application, the applicant commenced a number of appeals to Ontario’s Divisional Court about the SBT proceedings. At the time of the hearing, some of the appeals were still outstanding before the Divisional Court. At the hearing, Peel produced another Notice of Appeal and a corresponding Factum dated June 21, 2010, both of which were entered as exhibits.

11Neither Peel nor the applicant took the position that the hearing of the Application should be deferred pending the conclusion of the various Divisional Court proceedings.

12Rule 14.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

13In the circumstances of this case, the Tribunal has determined that it is appropriate to defer the Application pending completion of the Divisional Court proceedings.

14The 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). 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. The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

15The Tribunal has deferred an application where the same facts underlay both a civil action and the application to the Tribunal. Even if the human rights issues will not be resolved by the civil action, if it is at an advanced stage, it may be fair, just and expeditious to defer the Tribunal’s proceedings. See Tekes v. Markham (Town), 2009 HRTO 1665.

16In this case, the applicant has filed several Notices of Appeal in the Divisional Court and is asking the Court to review the decisions issued by the SBT based on the same factual foundation as the subject matter of this Application. In her facta, the applicant expressly raises human rights issues for the Court to determine. In these circumstances I am satisfied there is sufficient overlap of factual and legal issues that the hearing of this Application should be deferred pending the conclusion of all the Divisional Court proceedings.

17The Tribunal’s Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.