HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Eunice Kim
Applicant
-and-
Dr. Shalom Cemenietzki
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Kim v. Dr. Shalom Cemenietzki
WRITTEN SUBMISSIONS
Eunice Kim, Applicant
Self-represented
Dr. Shalom Cemenietzki, Respondent
Lisa Hamilton, Counsel
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race, ancestry, place of origin and ethnic origin.
2This Interim Decision addresses the respondent’s request, as stated in his Response to the Application, that the Application be dismissed pursuant to s. 45.1 of the Code or, in the alternative, that it be deferred pending the outcome of another proceeding.
3The Application alleges that the respondent, a psychologist, made a racist comment to the applicant in the course of their working together. On July 26, 2012 the applicant filed a complaint with the College of Psychologists of Ontario (the “College”) In her complaint to the College the applicant also alleges that the respondent made the same racial comment that the applicant refers to in her Application.
REQUEST TO DISMISS PURSUANT TO Section 45.1
4S.45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
5The respondent submits that the College has a statutory mandate under the Regulated Health Professions Act 1991, S.O. 1991, c. 18 to, amongst other things, develop, establish and maintain standards of professional ethics of its members. It submits that the College has a statutory mandate and obligation to consider any complaint made against a member and that it has the jurisdiction to address human rights matters pursuant to Tranchemontagne v. Ontario (Director, Disability Programs), 2006 SCC 14. Accordingly, the respondent submits that the applicant will have the opportunity to raise her allegation of discrimination before the College and that the College can duly determine whether the respondent discriminated against the applicant, as alleged. The respondent submits that the College has not, as yet, rendered its decision but as it is dealing with the same matter as raised by the applicant before the Tribunal, the Tribunal should dismiss the Application pursuant to s. 45.1.
6The applicant submits in her Reply that although there are concurrent proceedings addressing her allegations against the respondent this shouldn’t warrant dismissal of her Application but only a deferral of her Application.
7I am satisfied that the College is dealing with the allegations in the Application. A review of the applicant’s claim before the College and the Application makes this clear. However, based on the plain and ordinary meaning of the words in s.45.1 of the Code, I cannot find that the College “has appropriately dealt with” the substance of the Application as argued by the respondent. At this point in time, the proceedings before the College are ongoing. The College has not yet dealt with the substance of the Application. It therefore cannot be said to have “appropriately dealt” with the Application. See, for example, Leduc v. Loblaw Companies Limited, 2012 HRTO 519 Cull v. Alliance Forming, 2011 HRTO 383. The request to dismiss the Application on the grounds that the subject-matter of the Application has been appropriately dealt with in another proceeding is denied.
REQUEST TO DEFER
8Pursuant to the Tribunal’s Rules of Procedure, 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 (Rule 14.1).
9Deferral 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. 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 and the type of remedies available in the other proceeding
10I am satisfied that the Tribunal should defer further consideration of the Application pending the outcome of the applicant’s complaint to the College. The College has the mandate and obligation to consider the applicant’s allegations. The process at the College is underway. The applicant is not objecting to the request for deferral.
11The Application is deferred pending the conclusion of the College’s proceeding.
12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding. It remains open to the respondent to file a request for dismissal pursuant to s. 45.1 in the future.
13I am not seized of this matter.
Dated at Toronto, this 30^th^ day of November, 2012.
’signed by”
Eric Whist
Vice-chair