Peters v. Law Society of Upper Canada, 2013 HRTO 1070

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elsie Peters

Applicant

-and-

Law Society of Upper Canada and Danielle Smith

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 17, 2013

Citation: 2013 HRTO 1070

Indexed as: Peters v. Law Society of Upper Canada

WRITTEN SUBMISSIONS

Elsie Peters, Applicant Self-represented

Law Society of Upper Canada and Danielle Smith, Respondents Andrea Gonsalves, Counsel

1The applicant filed this Application on March 18, 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 membership in a vocational association on the basis of race, colour, ancestry, ethnic origin and sex.

2The applicant is a lawyer licensed by the respondent Law Society. The applicant alleges that the respondent Law Society ignored concerns and failed to take action in relation to alleged discriminatory remarks made by another lawyer towards the applicant. The applicant further alleges that the Law Society has discriminatorily commenced and continued discipline proceedings against her and that the individual respondent, as the respondent’s discipline counsel, has also made discriminatory remarks about the applicant.

3On April 25, 2013, the respondents filed their Response denying the allegations. The respondents request that consideration of the Application be deferred on the basis that there is an ongoing proceeding (discipline hearing) involving some or all of the facts and issues raised in the Application. The respondents note that the hearing has proceeded over 11 days and was scheduled to continue in May 2013.

4The applicant filed a Reply and written submissions opposing the request to defer. The applicant asserts the professional misconduct matters currently before the discipline panel are totally different from the applicant’s human rights concerns and that her allegations of differential treatment are only before the Tribunal.

DECISION

5Pursuant 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.

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. 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.

7While 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 of Ontario, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330, and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.

8Some 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.

9The Law Society discipline proceedings were commenced long before this Application and the hearing process is well underway. It appears that the some of the facts raised in the Application overlap with some of the issues before the hearing panel.

10Tribunal decisions have deferred applications where there were ongoing Law Society discipline proceedings: see for example, Sawhney v. Law Society of Upper Canada, 2011 HRTO 926; Hamalengwa v. Law Society of Upper Canada, 2012 HRTO 668; and Sugarman v. Farant, 2013 HRTO 488. The Tribunal in Akhtar v. Law Society of Upper Canada, 2009 HRTO 1479, deferred the application pending the conclusion of a judicial review of a decision made by the Law Society regarding an accommodation complaint. In Dixon v. Isidoro Grossi Professional Corporation, 2010 HRTO 656, and Ormesher v. Schwarz Law LLP, 2013 HRTO 1035, the Tribunal deferred the application pending the completion of a Law Society investigation.

11In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. I appreciate that the applicant has a valid interest in having her Application dealt with expeditiously, but in my view, this interest is outweighed by other factors, including the fact that the Law Society proceeding is at a more advanced stage than the Tribunal process, there is potential for duplication of evidence in two concurrent proceedings with respect to certain specific matters in dispute, and there is a possibility of inconsistent findings of fact. In light of the fact that the Law Society process was commenced first and remains outstanding, as well as the issue of overlapping allegations, I find it appropriate to defer this Application.

12Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the proceeding before the Law Society and any related reviews or appeals.

13I note there may be a question with respect to whether or not the Tribunal has jurisdiction over the allegations as against the individual respondent named in this Application. The Tribunal has stated that the relationship between a lawyer and an opposing party is not covered by the Code: see, Belso v. York Region Police, 2009 HRTO 757, and Cooper v. Pinkofskys, 2008 HRTO 390. If the Application is reactivated, the Tribunal may direct the parties to file submissions with respect to this jurisdictional issue.

14Where 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).

15I am not seized.