Kueber v. Grey County Social Services, 2012 HRTO 2177

Human Rights Tribunal of Ontario

Between:

Barbara Kueber Applicant

-and-

Grey County Social Services Respondent

Interim Decision

Adjudicator: Sheri D. Price Date: November 21, 2012 Citation: 2012 HRTO 2177 Indexed as: Kueber v. Grey County Social Services

1In this Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the applicant alleges that the respondent discriminated against her with respect to services because of disability when it refused to cover the cost of medical marijuana that the applicant requires to treat a serious pain disorder.

NOTICE OF INTENT TO DEFER

2On October 18, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding, namely an appeal to the Social Benefits Tribunal ("SBT") under the Ontario Works Act, 1997, S.O. 1997, c 25, Sch A. The Tribunal directed the parties to deliver and file any written submissions that they wished to make in respect of the deferral issue within 30 days of the date of the Notice of Intent to Defer.

3The respondent consents to the deferral of the Application. The applicant does not. In fact, the applicant goes so far as to say that she is willing to withdraw her appeal to the Social Benefits Tribunal if necessary in order that her Application to the Tribunal may proceed. In my view, however, it is not necessary for the applicant to do this to avoid deferral of the Application. This is because, in the circumstances of this case, I am not persuaded that the Application ought to be deferred pending the completion of the appeal before the Social Benefits Tribunal.

4The 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 (Rule 14.1). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer to another legal proceeding that raises some or all of the same facts and issues as the Application. However, the 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.

5The issue in the Application is whether the respondent discriminated against the applicant contrary to the Code by refusing to cover the cost of the medical marijuana that the applicant allegedly required because of disability. Based on the materials before me, it does not appear that this is an issue in the ongoing proceeding before the Social Benefits Tribunal. On the contrary, it appears that the issue before the Social Benefits Tribunal is whether the applicant is entitled to community startup and maintenance benefits, relating to certain moving and storage expenses that she allegedly incurred.

6Given the distinct nature of the issues before the Tribunal and the SBT, it is not appropriate to defer the Application. In my view, the reason for deferring an Application – avoiding inconsistent findings of fact or law by adjudicators in concurrent proceedings – does not exist where there is no ongoing proceeding before the SBT with respect to the subject-matter of the Application.

7In coming to this conclusion, I am mindful that, in her Application to the Tribunal, the applicant appears to be seeking compensation for the same moving and storage expenses that she is seeking in her SBT appeal on the stated basis that they were incurred, at least in part, because of the discriminatory decision not to cover the cost of her medical marijuana. In my view, an overlap in the remedies being sought in the human rights Application and in the appeal to the SBT is not a sufficient reason to defer the Application, where it is clear that the SBT appeal will not deal with the central claim being advanced in the human rights Application.

ORDER

8The Application is not deferred and will continue in the Tribunal's process.