Robertson v. Ontario (Health and Long Term Care), 2012 HRTO 942

Human Rights Tribunal of Ontario

B E T W E E N:

James Robertson Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care, Waypoint Centre for Mental Health Care and Carol Lambie Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: May 9, 2012 Citation: 2012 HRTO 942 Indexed as: Robertson v. Ontario (Health and Long Term Care)

1This is an Application filed on November 3, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination in employment, services and membership in a vocational association on the basis of race, colour, ancestry, disability and reprisal.

2The Application names the Ministry of Health, Waypoint Centre for Mental Health Care (Waypoint) and Carol Lambie, the CEO of Waypoint, as respondents. The style of cause has been amended to record the proper name of the Ministry as the Ministry of Health and Long-Term Care (MOHLTC).

3According to the MOHLTC the applicant was ordered detained at Waypoint in October 2007 after having been found not criminally responsible on account of mental disorder in respect to certain criminal offences. He remains at Waypoint under Order of the Ontario Review Board (“ORB”).

4In his Application the applicant indicates that he was involved in a proceeding before the ORB that was still in progress and involved facts raised in his Application. Consequently, on March 27, 2012 the Tribunal issued a Notice of Intent to Defer the Application pending the resolution of the applicant’s proceedings before the ORB. The Tribunal requested written submissions from the parties on this issue.

5The Tribunal has received submissions from the applicant, MOHLTC and Waypoint. The parties have also provided a number of documents related to the applicant’s proceedings before the ORB.

DEFERRAL

6I am satisfied, based on the submissions and documents before me, that I can rely on the following facts.

7The applicant’s proceeding before the ORB was an annual review pursuant to the Criminal Code of Canada to determine whether the applicant remained a significant threat to the safety of the public and, if so, where he should be detained. The applicant’s review hearing before the ORB took place on May 3, 4, 5, 2011 and January 11, 12, 13 and 18, 2012. During this proceeding the applicant filed a notice of a constitutional question, alleging a number of Charter breaches by Waypoint with respect to, amongst other things, his alleged inability to access cable television, as well as unfettered Internet and telephone service. These issues are also raised in the applicant’s Application.

8On January 14, 2012 the ORB issued a ruling that the applicant would not be allowed to adduce more evidence in relation to any constitutional question and ruled that

the constitutional breaches alleged by Mr. Robertson either involve remedies that go beyond the jurisdiction of the Board or fail to reach the threshold required in law to proceed.

9On January 27, 2012 the ORB rendered its disposition ordering that the applicant continue to be detained at Waypoint. On January 30, 2012 the applicant filed a Notice of Appeal of the ORB’s January 14, 2012 ruling and “any dispositions that might flow from the Ontario Review Board hearing” to Court of Appeal for Ontario. On March 30, 2012 the ORB released its Reasons for Disposition including its reasons for its January 14, 2012 ruling.

10The Tribunal has as part of the documents submitted for the Application and in response to the Notice of Intent to Defer copies of the ORB’s January 14, 2012 ruling, the January 30, 2012, the Notice of Appeal filed by the applicant with the Court of Appeal for Ontario and the ORB’s March 30, 2012 Reasons for Disposition.

11The applicant filed his submissions with the Tribunal on April 2, 2012. The applicant submits that his Application should proceed before the Tribunal on the basis that there are no other ongoing legal proceedings. The applicant submits that the ORB has dismissed the matters he had brought before them. The applicant provides a copy of the ORB’s January 14, 2012 ruling.

12The MOHLTC filed its submissions on April 20, 2012. It provides an account of the applicant’s proceedings before the ORB. It submits that it is unaware as to whether the applicant has appealed the ORB’s decision.

13Waypoint filed its submissions on April 24, 2012. It submits that although the ORB hearing has concluded the applicant has appealed this decision and that the same matters remain alive before the Court of Appeal for Ontario. It submits that as these matters are not as yet resolved the Tribunal should defer the Application pending resolution of the applicant’s appeal before the Court of Appeal.

DECISION

14The Tribunal may, on its own initiative, defer consideration of an application, on such terms as it may determine, pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral 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. 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. 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, the type 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.

15The applicant was involved in a proceeding before the ORB that the applicant identified to the Tribunal as involving facts included in his Application. I am satisfied, based on the information before me, that the applicant has appealed decisions arising from this proceeding to the Court of Appeal. In so doing the applicant is asking the Court of Appeal to consider some of the same subject matter that forms part of his Application. Under these circumstances I am of the view that it would not be just, fair or expeditious to proceed with the Application at this time.

16As such, the Application will be deferred pending resolution of the applicant’s appeal.

17I direct the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the applicant’s appeal proceedings.

18I am not seized of this matter.