C.K. v. C[...] Inc., 2012 HRTO 2061

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.K.

Applicant

-and-

C[…] Inc. and H.S.

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Decision Date: October 29, 2012

Citation: 2012 HRTO 2061

Indexed as: C.K. v. C[…] Inc.

WRITTEN SUBMISSIONS

C.K., Applicant

Self-represented

C[…]Inc., Respondent

F.H., Representative

H.S.h, Respondent

Self-represented

1On July 18, 2012, by way of Interim Decision 2012 HRTO 1403, this Application was reactivated subsequent to deferral pending the conclusion of a criminal proceeding. Based on my review of a Probation Order dated February 13, 2012 issued by the Ontario Court of Justice, it appears that the personal respondent was convicted of sexual assault.

2On August 27, 2012, the personal respondent filed a Request for an Order During Proceedings (“Request”) seeking that the matter again be deferred on the basis that he is appealing his conviction. The personal respondent indicated that the matter is still on-going and the next court date scheduled for December 20, 2012. The personal respondent did not provide any documentary confirmation of the court date, nor any specific information as to the status of the proceeding and what exactly is scheduled to occur on December 20, 2012.

3The applicant did not file any submissions in response to the personal respondent’s request to defer and the organizational respondent also did not confirm its position.

4As such, on September 24, 2012, the Tribunal issued a Case Assessment Direction directing the personal respondent to provide (1) documentary confirmation of the court date; (2) specific details as to the status of the proceeding; (3) specific information as to what exactly is scheduled to occur on December 20, 2012; and (4) the anticipated timeline for the duration and completion of any outstanding process. The organizational respondent was required to confirm whether or not it agrees with deferral. The applicant was required to provide submissions in response to the personal respondent’s request to defer.

5On October 3, 2012, the organizational respondent wrote to the Tribunal, copied to the other parties, indicating that it agrees with deferral.

6On October 12, 2012, the personal respondent wrote to the Tribunal, attaching a copy of an unsigned letter of the same date from his criminal lawyer stating that the applicant’s appeal of his conviction for sexual assault has been set down for a hearing on January 14, 2013. The personal respondent failed to copy his correspondence to the other parties.

7On October 16, 2012, the applicant filed submissions, copied to the other parties, opposing deferral. The applicant notes that she has received no proof or confirmation of the specific court dates for appeal. The applicant expresses concern over the delay that has already occurred in dealing with the personal respondent’s request. The applicant states the delay has caused her a great deal of stress and anxiety as she is continuously reminded of an incident for which she would like closure.

DECISION

8Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal has the discretion to defer consideration of an application. 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 automatic simply because the parties are engaged in another proceeding.

9Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

10The Tribunal must 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 the earlier Interim Decision 2011 HRTO 785 deferring this matter, the Tribunal noted that deferral may be appropriate when there is a criminal matter proceeding in which the respondent to the Application is charged and may be required to testify at a Tribunal hearing prior to the trial.

12Based on the information provided by the parties, although the personal respondent is now pursuing an appeal, the criminal trial is complete. Accordingly, there is no basis for me to conclude that the personal respondent’s participation in the Tribunal process could prejudice or impact a criminal trial. The personal respondent previously indicated that the appeal was scheduled for December 20, 2012 and now indicates, through an unsigned letter from his criminal counsel, that the appeal is set for January 14, 2013. This letter did not address the issues highlighted by the Tribunal regarding the anticipated timeline for the duration and completion of the appeal process. Since there is no ongoing criminal trial and the fluctuating scheduling of the appeal, as well as the uncertainty with respect to the timelines and duration, I do not find that it would be appropriate to defer consideration of the Application in the circumstances.

13The Tribunal notes that the personal respondent did not copy his October 12, 2012 email to the Tribunal with the attached letter from his criminal lawyer as required by the Rule 1.12 of the Tribunal’s Rules of Procedure. As a result, the information with respect to the January 14, 2012 appeal hearing date was not shared with the applicant.

14The personal respondent is reminded that, in accordance with Rule 1.12 of the Tribunal’s Rules of Procedure, all correspondence with the Tribunal must be copied to all parties and that the Tribunal will not accept any documents unless confirmation is provided that the document was copied to other parties.

15The personal respondent’s request for deferral is denied. The Tribunal will provide a copy of the personal respondent’s October 12, 2012 correspondence to the applicant and the organizational respondent along with this Interim Decision.

16I am not seized of this matter.