Bharat Parmar v. Credit Valley Counselling Services and Victor Ahamut Ali, 2012 HRTO 2250

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bharat Parmar Applicant

-and-

Credit Valley Counselling Services and Victor Ahamut Ali Respondents

INTERIM DECISION

Adjudicator: Judith Keene Date: December 3, 2012 Citation: 2012 HRTO 2250 Indexed as: Parmar v. Credit Valley Counselling Services

WRITTEN SUBMISSIONS

Bharat Parmar, Applicant Krishna Badrinaryan, Counsel

Credit Valley Counselling Services and Victor Ahamut Ali, Respondents Self-represented

Introduction

1This is an Interim Decision in respect of 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 services, goods and facilities because of disability.

2The Application alleges that on September 27, 2011, during the course of a counselling session, the personal respondent exhibited abusive behaviour toward the applicant and denied his request to take a break and use the washroom.

3The Application indicated that the applicant filed complaints against the personal respondent with the College of Psychologists of Ontario. In a letter dated January 18, 2012 and appended to the Application, a Case Manager, Investigations and Resolutions of the College indicated that the complaint alleged a violation of the Code, but that the Inquiries, Complaints and Reports Committee “is not in a position to determine whether a law has been contravened”. In a letter dated February 1, 2012, to the same Case Manager, the applicant withdrew “any and all allegations against Mr Ali with respect to the Ontario Human Rights Code”.

4The decision of the Inquiries, Complaints and Reports Committee is also appended to the Application. The decision contains no mention of the Code, or of discriminatory differential treatment, constructive discrimination or harassment. In the applicant's response to the Tribunal’s Notice, he indicates that he has filed an appeal to the Health Professionals’ Appeals Review Board (“HPARB”).

5On October 9, 2012, the Tribunal sent the parties a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The Notice indicated that the respondents were not required to file a Response at that time. The Notice asked for submissions from the parties no later than November 8, 2012. Both parties made written submissions.

6The personal respondent, on behalf of both respondents, asserts that it may be appropriate to defer. The personal respondent points out that the findings of the HPARB may be relevant to this Application.

7The applicant opposes deferral. The applicant points out that the Inquiries, Complaints and Reports Committee did not investigate or consider questions related to a claim of discrimination under the Code, and made no findings relating to discrimination. On a review of the Committee’s decision, I agree that neither the Code nor issues relevant to the Code were addressed in the decision.

8The applicant also argues that the HPARB lacks jurisdiction to hear and decide the substance of the Application. In my view, this assertion is incorrect. The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide whether the Code has been breached (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14). Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, there is potential for facts and issues to be litigated more than once with conflicting results, and therefore the orderly administration of justice favours deferral to the other proceeding.

9Having said the above, in this situation the parties are clearly not raising the same human rights issues before the HPARB. It appears to me that there is a little potential jeopardy to the orderly administration of justice in respect of this Application, but for the issue of relitigation of questions of fact and possible conflicting findings of fact should this Application proceed to a hearing.

10In this case, the allegations of fact at issue in this Application reflect only one part of the applicant’s complaint to the College. However, some findings of fact relevant to this Application appear to have been made by the Complaints and Reports Committee. Further relevant findings of fact might be made by the HPARB. In such situations, this Tribunal may, as a matter of law, be required to adopt findings of fact that have already been litigated and decided in a court or another tribunal, to prevent abuse of process or as a matter of fact estoppel (see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63; Canadian Tire Corp. v. Summers, 1995 CanLII 7183 (ON S.C.)).

11In the circumstances of this case, I see no reason not to direct that the application move forward, conditional on the applicant providing an update to the Tribunal about the progress of the HPARB appeal and without prejudice to the Tribunal or the respondent raising the issue of deferral should circumstances warrant that, at a later date.

ORDER

12The respondent is ordered to file a Response within 35 days of the date of this Interim Decision. The applicant has indicated willingness to undertake mediation, and the respondent may indicate on the Response whether this option is of interest.

13The applicant is ordered to send written information to the Tribunal that indicates the progress to date of his appeal to the HPARB, including whether a hearing date has been set. The applicant must send this information within 15 days of the date of this Interim Decision.

14I am not seized.