Tracey v. Industrial Alliance Insurance, 2012 HRTO 615

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Tracey Applicant

-and-

Industrial Alliance Insurance and Financial Services Inc. Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: March 23, 2012 Citation: 2012 HRTO 615 Indexed as: Tracey v. Industrial Alliance Insurance

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of this Application pending the conclusion of a related proceeding currently before the Court.

Background

2The Application was filed on December 5, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"). The Application alleged that the respondent had discriminated against the applicant by terminating long term disability insurance benefits that it had been paying and requesting repayment of past benefits. The Application also alleged that the applicant's Code-protected rights had been infringed because the respondent conducted surveillance of her and because of the way she was questioned by the respondent's counsel during an examination for discovery.

3After reviewing the Application, the Tribunal, on its own motion, directed a summary hearing, pursuant to Rule 19A of the Tribunal's Rules of Procedure. The summary hearing is currently scheduled to be heard on April 17, 2012.

4On January 10, 2012, Eliot Kolers, the respondent's counsel, wrote to the Tribunal to advise that there is ongoing litigation before the Court arising out of a civil action commenced by the respondent, alleging that the applicant was not entitled to the long term disability benefits she had been paid. The applicant filed a defence and a counter claim.

5On January 18, 2012 the applicant wrote to the Tribunal and advised that she could not participate in a telephone conference call with the respondent's lawyer, Mr. Kolers.

6On February 7, 2012, the Tribunal issued a Case Assessment Direction which discussed options for dealing with the applicant's concerns about participating in a telephone conference call with Mr. Kolers. The Case Assessment Direction also said that the issue of whether the Tribunal should defer further consideration of the Application until the civil actions before the Court have been resolved would be addressed at the summary hearing.

7On February 27, 2012, the applicant wrote to the Tribunal. After reviewing this letter, the Tribunal issued a Case Assessment Direction dated February 28, 2012. That Case Assessment Direction indicated that it was appropriate to deal with the deferral issue in advance of the summary hearing. The Case Assessment Direction invited the parties to make submissions on whether the Tribunal should defer further consideration of the Application until the civil actions currently before the Court have been resolved.

8The applicant sent a letter that the Tribunal received on March 8, 2012, indicating that she does not oppose deferral.

9On behalf of the respondent, Mr. Kolers filed submissions opposing deferral. Mr. Kolers argues that the purpose of a summary hearing is to determine whether the case ought to proceed. He notes that if an Application is dismissed at the summary hearing stage because there is no reasonable prospect that the Application will succeed, there is no risk of inconsistent results as between the Tribunal and the litigation before the Court. He also submits that the litigation does not appear to raise allegations of any Code-related issues and that there is consequently no overlap in the issues.

Decision

10Having reviewed the submissions of the parties and the other documents that the parties have filed with the Tribunal since the Application was originally filed, I am of the view that the Tribunal should defer further consideration of the Application.

11It appears that although the applicant may not have specifically raised the Code in the proceedings before the Court, the issues before the Court are virtually identical to the issues raised in the Application. The central issue in the Court case is whether the applicant is entitled to the long term disability benefits she received and if she is entitled to further benefits. The central issue in the Application is whether the respondent stopped paying the long term disability benefits for discriminatory reasons. It appears that the proceedings before the Court were started before the Application was filed.

12In the circumstance, given the overlap in the subject-matter of the Application and the court proceeding, it is appropriate to defer the Application. To proceed even to a summary hearing could lead to a duplication of proceedings. Moreover, it may be that a finding by the Court would be important in deciding the Application, including the question of whether there is no reasonable prospect that the Application would succeed at the Tribunal. In my view, in these circumstances it would not be appropriate for the Tribunal to deal with the Application at all until the proceeding before the Court is concluded.

13Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure outline the process by which the Application may be brought back on after the proceeding before the Court has been concluded.

Order

14The Tribunal will defer further consideration of the Application until the proceeding before the Court is concluded.