HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeffrey Posluns Applicant
-and-
City of Toronto Respondent
INTERIM DECISION
Adjudicator: Naomi Overend Date: April 16, 2012 Citation: 2012 HRTO 766 Indexed as: Posluns v. Toronto (City)
1The purpose of this Interim Decision is to address the request to defer this Application pending the completion of a Judicial Review Application ("Judicial Review") brought by group of individuals (one of whom is the applicant) against the respondent.
2The applicant is a member of a group of individuals who are dog owners, who filed a Judicial Review of a decision by staff of the City of Toronto to close a designated off-leash area in Ledbury Park. The decision to close the off-leash area was apparently made in the summer of 2011 (first in June and then confirmed in August). The Judicial Review was issued on October 17, 2011.
3The applicant filed his Application to the Tribunal on July 18, 2011 alleging discrimination in the provision of services on the basis of disability contrary to Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Briefly, the applicant alleges that in making this decision, staff for the respondent relied upon a number of considerations, one of which was discriminatory.
4It would seem to be common ground between the parties that the respondent decided that the off-leash area was to be closed because there were a number of unresolved conflicts between the neighbours whose properties backed onto the off-leash area and the users of the area. The only criteria which the applicant alleges was contrary to the Code relates to complaints made by him that one of the neighbours continued to erect barriers (such as plantings) that prevented him from accessing the off-leash area.
5It is not clear from his Application the nature of the applicant's disability, but he does indicate that he requires a wide ramp for access as well as a disabled parking spot. The applicant states that by relying on his attempts to enforce his rights as a person with a disability, the respondent is penalizing him and other disabled users of the park for complaining about this neighbour's actions.
6The respondent has brought a Request for an Order During Proceedings (Form 10) to defer the Application pending the outcome of the Judicial Review.
DECISION AND ANALYSIS
7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
8In its Request to defer, the respondent argues that the Application should be deferred pending the outcome of the Judicial Review because the applicant "challenges exactly the same decision" (i.e., the closure of the off-leash area) in his Application as is challenged in the Judicial Review.
9The applicant did not file a Response to the Request to Defer, but he does note in his Reply (which pre-dates the Request) that he is not challenging the respondent's decision to close the off-leash area in his Application, only its apparent reliance on the one discriminatory criteria. He points out that in his Application he is not seeking the re-opening of the off-leash area (which would, in any event, involve the Tribunal reviewing matters outside its jurisdiction), but only such remedies as sensitivity training for staff and an apology to disabled users of the park.
10The Application for Judicial Review does not appear to allege on its face discrimination, nor would it appear that it seeks the relief sought by the applicant in his Application before this Tribunal. At this point, there does not appear to be a significant danger of inconsistent findings of fact or law in the two proceedings. As the Judicial Review progresses, and the parties file further material, this may change, in which case the respondent can renew its request to this Tribunal. In the meantime, it would seem appropriate to proceed to mediation on this Application, which is scheduled for May 10, 2012.
11The respondent's request to defer this Application pending the outcome of the Judicial Review at this time is denied.
12I am not seized.
Dated at Toronto this 16th day of April, 2012.
"signed by"
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Naomi Overend Vice-chair