A.S. v. Voysus Group Inc., 2012 HRTO 1815

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.S.

Applicant

-and-

Voysus Group Inc. and Mahdi Raza

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 21, 2012

Citation: 2012 HRTO 1815

Indexed as: A.S. v. Voysus Group Inc.

WRITTEN SUBMISSIONS

A.S., Applicant ) Kristin Bisbee, Representative

Voysus Group Inc., Respondent ) Kashif Raza, Representative

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a criminal proceeding.

BACKGROUND

2On April 6, 2010, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents subjected her to sexual harassment and sexual solicitations and advances with respect to employment.

3The hearing of the case commenced on February 21, 22 and 23, 2012, and is scheduled to resume on September 24, 25 and 26, 2012.

4On or about March 16, 2012, the individual respondent was criminally charged with sexual assault of the applicant, and as a condition of his release signed an undertaking to abstain from communicating with the applicant or going to any place where the applicant is located or known to be.

5On August 24, 2012, the organization respondent filed a Request for an Order During Proceedings, which requested that the Tribunal defer the Application pending the conclusion of the criminal proceeding. The organization respondent did not provide any further reasons in support of its Request.

6On August 31, 2012, the applicant filed a Response, which opposed the organization respondent’s Request. The applicant stated that the Request should be denied because the human rights proceeding began two years and five months before the criminal proceeding, the applicant is not a party in the criminal proceeding, the criminal proceeding will not consider the applicant’s claims under the Code, the applicant will not be able to obtain remedies in the criminal proceeding, deferring the Application will undermine the Tribunal’s mandate to resolve applications expeditiously, deferring the Application will cause the applicant to incur additional costs, and deferring the Application will cause inconvenience to the applicant’s representatives and witnesses who are prepare to proceed on September 24, 25 and 26, 2012.

7On September 12, 2012, the Tribunal issued a Case Assessment Direction, which made the following direction:

By no later than September 18, 2012, the individual respondent shall deliver to the other parties and file with the Tribunal written submissions addressing (a) the status of his undertaking in the criminal proceeding, (b) whether he intends to attend the hearing on September 24, 25 and 26, 2012, and (c) his position on the organization respondent’s request to defer the Application pending the conclusion of the criminal proceeding.

8On September 13, 2012, the organization respondent sent the Tribunal an e-mail, which attached a copy of a Recognizance to Keep the Peace dated September 6, 2012, which allows the individual respondent to attend court or tribunal proceedings where the applicant is present. The e-mail stated that the individual respondent would be attending the hearing on September 24, 25 and 26, 2012.

9The individual respondent has not complied with the Tribunal’s direction to provide written submissions addressing the deferral issue, and the time for doing so has now passed.

ANALYSIS

10Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides 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.

11In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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.

12In my view, deferral is not the most fair, just and expeditious way of proceeding with the Application. Although there may be some overlap between the facts and issues raised in the human rights proceeding and the criminal proceeding, the human rights proceeding started nearly two and a half years before the criminal proceeding, this Tribunal already heard three days of evidence on February 21, 22 and 23, 2012, the applicant has already taken steps to call witnesses and evidence with respect to the resumption of the hearing on September 24, 25 and 26, 2012, the applicant is not a party in the criminal proceeding, and the applicant will not be able to advance her human rights claims or obtain human rights remedies in the criminal proceeding. Furthermore, neither the organization respondent nor the individual respondent has identified any compelling reasons why the Application should be deferred.

13Accordingly, the hearing of the case will proceed as scheduled on September 24, 25 and 26, 2012.

ORDER

14The organization respondent’s Request to defer the Application pending the conclusion of the criminal proceeding is dismissed.