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
Respondent
INTERIM DECISION
Adjudicator: Sherry Liang
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”).
2In a previous Interim Decision, 2011 HRTO 656, the Tribunal directed the parties to provide submissions on whether it would be appropriate to defer the Application pending the completion of disciplinary proceedings before a Hearing Panel of the respondent Law Society of Upper Canada (“LSUC”). The applicant and the respondents have provided written submissions.
3From the material before me, it appears that the Hearing Panel has concluded its hearing and made findings on the allegations of professional misconduct against the applicant, with reasons to follow. The Hearing Panel also dismissed a motion from the applicant to stay the discipline proceeding based on his contention that the investigation process was discriminatory. The respondents state that the dismissal of the motion was made on the basis, among other things, that there was no evidence to establish a prima facie case of discrimination against the applicant. They assert that the Hearing Panel confirmed that it could hear, and indeed decided, the very same issues under the Charter of Rights and Freedoms and human rights issues raised by the applicant in his Application to the Tribunal.
4The respondents submit that the Application should be deferred pending completion of the discipline proceeding, including recourse to the LSUC Appeal Panel and the Ontario Superior Court of Justice - Divisional Court (“Divisional Court”).
5The applicant states that he is “not opposed to a reasonable time for deferral.” Although he submits that the Tribunal may proceed even without a final written decision from the Hearing Panel, in the alternative, he agrees with the option of proceeding once that decision has been given.
6The applicant makes a number of submissions in support of his position that the Tribunal should hold a hearing into the merits of his allegations of discrimination. He refers to the different remedial jurisdiction as between the LSUC panels and this Tribunal. He refers to the cost of proceedings before the LSUC panels and the Divisional Court as a barrier to having his claim of discrimination fully dealt with there.
DECISION
7The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. It has stated that 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.
8Deferral, however, 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.
9The Tribunal has stated that “[wh]ere the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding” (Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 966).
10On balance, I find it appropriate to defer the Application until the completion of the discipline process before the LSUC, including the exhaustion of any appeal to an Appeal Panel of the LSUC and recourse to the courts on a judicial review application. The Application and the disciplinary proceedings raise overlapping facts and issues, including the allegations of discrimination at the core of the Application. The disciplinary process is well underway, with the Hearing Panel having ruled on some of the issues that have been put before the Tribunal. The Hearing Panel has apparently found that it has the authority to hear the human rights issues raised by the applicant and it is expected that its written reasons should provide the reasons underlying that finding. In the circumstances, it would not be in the interests of the orderly administration of justice to proceed with the Application until the completion of the other process.
11I recognize that the allegations of discrimination are being considered in the other process within a very different statutory framework and context from that which governs the Tribunal. I have considered the applicant’s submissions and, in my view, they do not detract from the wisdom of waiting until the end of the other process before proceeding with the Application. They may be relevant, however, to a determination of whether the applicant’s allegations of discrimination have been “appropriately dealt with” under section 45.1 of the Code, through the LSUC process and any court proceedings that follow.
12In the result, the Tribunal will defer the Application pending the completion of the discipline process, including any appeal or judicial review application.
13The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which the Application may be brought back on after the conclusion of the discipline process.
14I am not seized of this matter.
Dated at Toronto, this 12^th^ day of May, 2011.
“Signed by”
Sherry Liang
Vice-chair```