Ormesher v. Schwarz Law LLP, 2013 HRTO 1035

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Ormesher

Applicant

-and-

Schwarz Law LLP and Jayson B. Schwarz

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: June 10, 2013

Citation: 2013 HRTO 1035

Indexed as: Ormesher v. Schwarz Law LLP

WRITTEN SUBMISSIONS

Leslie Ormesher, Applicant

Elme Schmid, Counsel

Schwarz Law LLP and Jayson B. Schwarz, Respondents

Peter Brauti, Counsel

1The applicant filed this Application on February 7, 2013, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of sex and sexual solicitation or advances.

2The applicant was employed as a bookkeeper with the individual respondent’s law firm. The applicant alleges that, throughout most of her employment, she experienced a poisoned work environment and that the individual respondent subjected her and other employees to sexual harassment.

3The respondents filed a Response on April 25, 2013, denying all the allegations and raising concerns with respect to the applicant’s work performance. The respondents request deferral on the basis that the Law Society of Upper Canada (“LSUC”) is currently investigating the applicant’s professional misconduct complaint as against the individual respondent regarding the same allegations of sexual harassment.

4On May 2, 2013, the Tribunal delivered the Response to the applicant along with a Notice of Request to Defer. The Tribunal directed the applicant to file submissions as whether or not the Application should be deferred on the basis that there is an ongoing proceeding before the LSUC.

5The applicant filed a Reply on May 28, 2013, opposing deferral. The applicant asserts that there is no proceeding because the LSUC complaint is simply under investigation. The applicant submits that deferring the Application until the LSUC process is concluded delays her access to human rights remedies. The applicant further asserts that, since the LSUC process is in the early stage, there is no way of knowing if the complaint will proceed to a full hearing. The applicant submits that, as the LSUC complaint deals with professional misconduct, the LSUC process is completely independent of her human rights Application.

DECISION

6Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the 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. 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.

7The 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. The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts and order remedies that parallel the Application: see Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280.

8While deferral is not automatic simply because the parties are engaged in another proceeding, deferral does not require that the other proceeding deal with precisely the same legal issues as raised in the human rights application: see, for example, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330; and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.

9Some 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.

10Although there are different legal frameworks operating in the applicant’s two cases, it is clear that allegations in both matters are intertwined and that the evidence will likely overlap with respect to the specific conduct of the individual respondent. The applicant’s LSUC complaint was filed prior to the commencement of this Application. The LSUC complaint involves the identical concerns as raised in this Application. The applicant relies on the exact same events and the same witnesses in making her claims of sexual harassment and mistreatment. It appears that there is significant overlap between the Application and the LSUC complaint, especially with respect to the alleged incidents of sexual advances.

11I note that the Tribunal has deferred other applications in similar circumstances of disciplinary proceedings and, specifically, has ordered deferral because of active LSUC investigations and hearings: see for example Dixon v. Isidoro Grossi Professional Corporation, 2010 HRTO 656; Hamalengwa v. Law Society of Upper Canada, 2012 HRTO 668; and Sugarman v. Farant, 2013 HRTO 488. In Sugarman, supra, the applicant’s complaint was under investigation by the LSUC and the Tribunal ordered deferral of the application pending the conclusion of the LSUC process and “any related reviews or appeals”.

12I appreciate the applicant’s submission that the LSUC investigation will focus on the issue of professional misconduct and that the remedies available to the applicant are different. However, the LSUC investigation has begun and will collect the same witness evidence and, if necessary, any misconduct hearing will consider the same witness evidence that the parties have noted as relevant to this Tribunal proceeding, particularly in relation to the alleged sexual advances and poisoned work environment. Also, if the applicant’s LSUC complaint proceeds to a hearing, the LSUC hearing panel has concurrent jurisdiction to consider and apply the Code. I find that it would be unfair to the respondents to require them to simultaneously defend in two concurrent processes.

13In light of the fact that the LSUC complaint was commenced first and is actively being investigated and that the allegations and evidence in both matters are same, I find it is appropriate to defer this Application. There is real risk of unnecessary duplication and complication that could occur if the two matters proceed at the same time. In conclusion, in the circumstances of this case, I find it is in the interests of the orderly administration of justice that this Application be deferred until the completion of the LSUC process.

ORDER

14The Tribunal orders the deferral of the Application pending the conclusion of the LSUC process and any related reviews or appeals.

15Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

16I am not seized.