Mandich v. Clinicare Health Services Wonderland Ltd., 2011 HRTO 944

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Genna Mandich

Applicant

-and-

Clinicare Health Services Wonderland Ltd., Naeem Muhammed and Angelica Tesseris

Respondents

INTERIM decision

Adjudicator: Naomi Overend

Date: May 18, 2011

Citation: 2011 HRTO 944

Indexed as: Mandich v. Clinicare Health Services Wonderland Ltd.

1This Application was filed on November 12, 2010, alleging sexual solicitation or advance in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to deal with the respondent’s Request to defer the Application pending the resolution of a complaint filed on behalf of the applicant with the College of Physicians and Surgeons of Ontario (the “College”) on September 16, 2010.

BACKGROUND

2The applicant is a part-time receptionist with the respondent clinic. She alleges that one of the physicians in the clinic, Dr. Muhammed, subjected her to inappropriate sexual contact and comments on September 11, 2010. She complained about the conduct that day to the person she understood to be the primary owner of the clinic (she believed Dr. Muhammed to be a part-owner), who asked her to write out what had happened to her.

3In addition to the allegations concerning the conduct of Dr. Muhammed, the Application deals with the reaction of the clinic in attempting to address the applicant’s concerns. As the result of complaining, the applicant alleges that the office manager, Ms. Tesseris (who is the other named respondent), penalized her by taking shifts away from her, and being assigned to shifts at another location that is difficult for her to reach. As of the date of the Application, the applicant was on a leave of absence from the respondent clinic.

4A family friend, who appears to also be a physician, filed a complaint on the applicant’s behalf with the College on September 16, 2010. The complaint with the College deals with the allegations of inappropriate sexual contact and comment, but does not address the follow-up investigation and employment issues.

5Each of the three respondents filed separate Responses. Both Dr. Muhammed and the respondent clinic requested in their Responses that the Application be deferred pending resolution of the complaint to the College. The applicant made submissions in opposition to deferral in her Reply.

6On March 21, 2011, in response to an inquiry from the Tribunal, counsel for Dr. Muhammed advised that the complaint was still at the investigation stage, and that she could not say with any certainty when the College proceeding would be completed. She did advise that the next stage after the investigation is that the matter would be referred to the Inquiries, Complaints and Reports Committee to determine whether the matter should proceed to a hearing.

DECISION

7Deferral 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.

8Some 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.

9In this case, while it is clear that there is an overlap in the facts in the Application and the complaint to the College, the other factors suggest that deferral is not appropriate. This is not a case where there are concurrent legal proceedings occurring. At this time, the complaint at the College is only at the initial investigation stage, which may or may not proceed further to a hearing, whereas the Application is ready to be scheduled for hearing.

10Further, the complaint to the College deals only with the events of September 11, 2010, but does not (and would not appropriately) deal with the reaction of the clinic and the office manager to her disclosure, and the consequences to her employment. As well, in the event that the applicant’s complaint regarding Dr. Muhammed is upheld at the College, the applicant will not be entitled to remedies as the result of that process.

11Accordingly, the Tribunal is of the view that this is not an appropriate case in which to exercise its discretion to defer this proceeding. The respondents’ requests to defer are denied. If, during the processing of this Application, the College or the Health Professions Appeal and Review Board make a decision on the complaint, the Tribunal can determine what effect, if any, to give to such decision in determining the issues in this Application.

14I am not seized.