HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lambert Philadelphia
Applicant
-and-
Serco Des Inc.
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Philadelphia v. Serco Des
1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on September 13, 2011, alleging sexual harassment, solicitation, and reprisal. The applicant alleges that he was subjected to sexual harassment and advances, his employer failed to properly address his concerns, and that he was subjected to reprisal for raising his concerns.
2On November 28, 2011, the Tribunal issued a Notice of Intent to Defer and directed the parties to file submissions as to why consideration of the Application should or should not be deferred pending the resolution of another legal proceeding dealing with the subject matter of the Application.
3On January 25, 2012, the respondent filed submissions with respect to the Tribunal’s Notice of Intent to Defer and made various requests to dismiss the Application. The respondent submits that the Tribunal should dismiss the Application because some of the applicant’s allegations are not within the purview of the Code, some of the allegations have been dealt with through grievance procedures, and some of the allegations are untimely. The respondent further submits, in the alternative, that the Application be deferred pending the resolution of a criminal matter related to the applicant’s reprisal allegations.
4The applicant did not file submissions and the timeline for doing so has elapsed.
ANALYSIS
5The 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 ensures that proceedings dealing with the same facts and issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
6The Tribunal will 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. Some 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.
7Based on the parties’ materials, it appears that there are outstanding grievances, as well as a criminal matter. While the Tribunal does not have clear information as to the status of the grievances, there is no dispute that the grievances and the criminal matter pre-date the Application and that the subject-matter of these other processes directly relate the events and concerns alleged in the Application. In fact, the ongoing criminal proceeding, in which the applicant was charged, is alleged to constitute the reprisal engaged in by the respondent.
8The facts that will be considered in the criminal proceeding will overlap with the facts and issues as alleged by the applicant, and potentially the respondent’s line of defence with respect to reprisal. As such, a logical and orderly litigation of the various issues between the parties favours deferral. As previously noted, deferral of an application is appropriate to avoid concurrent proceedings and the possibility of inconsistent findings of facts or law.
9The Tribunal has deferred applications where there are ongoing criminal proceedings involving the parties, where the applicant or the respondent was the party who was criminally charged. See Miller v. Bernard, 2010 HRTO 1488; Bernard v. London Transit Commission, 2010 HRTO 1829; Hadley v. J.A.C.S. Cartage, 2010 HRTO 516; and Young v. Arbor Memorial Gardens, 2011 HRTO 425.
10In the circumstances, deferral of the Application is appropriate, at least until the conclusion of the criminal proceeding against of the applicant. However, the status of the grievances remains unclear and, as such, I cannot determine whether the Application should also be deferred pending the completion of the grievance processes.
ORDER
11Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the criminal proceeding against the applicant.
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 before the Tribunal after the criminal proceeding has concluded. The parties may be directed to provide up to date information as to the status of the grievances if a party seeks to reactivate this Application.
13Given the Tribunal’s decision to defer the Application pending the conclusion of the criminal matter, the Tribunal does not at this time need to consider the various preliminary issues raised by the respondent. The Tribunal will consider the issues after reactivation.
Dated at Toronto, this 2nd day of February, 2012.
”signed by”_________
Ena Chadha
Vice-chair