Todd MacNinch v. R.P.R. Environmental and Patrick Whitty, 2012 HRTO 1994

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Todd MacNinch

Applicant

-and-

R.P.R. Environmental and Patrick Whitty

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: October 22, 2012

Citation: 2012 HRTO 1994

Indexed as: MacNinch v. R.P.R. Environmental

1This is an Application filed on March 26, 2012 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of another related proceeding.

2Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

3Upon receipt of this Application, the Tribunal requested submissions from both parties within 30 days of May 23, 2012 on the question of deferral pending the resolution of an ongoing small claims court action dealing with the subject matter of the Application. Neither party responded initially to the Notice of Intention to Defer sent by the Registrar.

4The Tribunal then issued a Case Assessment Direction on July 13, 2012, directing the parties to provide submissions. The applicant filed submissions opposing deferral and the respondents requested an extension of time to provide their submissions due to unavailability of counsel. The Tribunal has now received submissions from the respondents seeking deferral.

FACTS AND SUBMISSIONS

5The Statement of Claim initiating the civil proceedings was issued on November 29, 2011. The respondents indicate that examinations for discovery were conducted on August 20, 2012 and September 27, 2012.

6The applicant concedes that both proceedings related to similar facts. However, he argues that the legal basis for both matters is different. The Tribunal Application concerns the failure of the respondents to accommodate the applicant and an allegation that he experienced reprisal. The civil claim is described by the applicant as relating primarily to a claim for monetary compensation in lieu of reasonable notice, the severity and illegitimacy of the disciplinary action imposed on the applicant. The applicant points out that it could have included Code issues in the civil claim but elected not to do so and, finally, that the individual respondent named in the present Application is not a party to the civil matter.

7The respondent, for its part, argues that deferral is appropriate because both matters deal with the same issues and facts pertaining to the conduct of the parties leading up to the termination of the applicant’s employment. As such the concurrent proceedings could lead to the possibility of inconsistent findings of fact.

DECISION

8Deferral 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

9Some 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.

10In this case, the most significant factors are that similar facts are in dispute, the possibility of inconsistent findings of fact and a potential overlap in the remedies requested.

11In these circumstances, the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of the civil proceeding.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the civil claim has been concluded.