Krause v. JM Tek Ltd., 2013 HRTO 1098

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Krause

Applicant

-and-

JM Tek Ltd., Janusz Maciag and Marcin Bachleda

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 19, 2013

Citation: 2013 HRTO 1098

Indexed as: Krause v. JM Tek Ltd.

WRITTEN SUBMISSIONS

David Krause, Applicant

Self-represented

JM Tek Ltd. and Janusz Maciag, Respondents

Gerard Thompson, Counsel

Marcin Bachleda, Respondent

Self-represented

1In this Interim Decision, the Tribunal determines that it is appropriate to defer the proceedings pending conclusion of the applicant’s criminal charge and to permit the respondents to rely upon additional documentation during the hearing. Set out below are my reasons.

2This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. A hearing was scheduled for March 6, 7, and 8, 2013.

background

3During the respondents’ opening submissions, Mr. Thompson advised that it was his clients’ understanding that the applicant and the corporate respondent’s former officer manager had been criminally charged by the police two days before the first day of hearing. The applicant confirmed this and stated that he had been charged with fraud. Mr. Thompson confirmed that it was his intention to cross-examine the applicant on his alleged fraudulent receipt of increased pay as part of his clients’ position that the applicant was terminated for just cause. Accordingly, it appeared that the applicant would be cross-examined on the same issue which is the subject of the criminal charge.

4The Tribunal provided the parties with a break to give the applicant an opportunity to call and speak with his criminal counsel about continuing with the Tribunal proceeding given his outstanding criminal charges, or deferring the Tribunal proceeding until the criminal charges have been disposed of. After the break, the applicant advised the Tribunal that he was able to speak with his counsel, who told him that he could not testify about the alleged fraudulent increased pay, although they were separate from the allegations raised in his Application as the corporate respondent had raised them following the applicant’s termination.

5Mr. Thompson took the position that as an officer of the court, given the recent criminal charges, the Tribunal proceedings should be adjourned.

6The Tribunal determined that it was appropriate, in light of the recent criminal charges, to adjourn the hearing and to seek the parties’ positions on whether the hearing should be deferred until the criminal charges have been disposed of, or further adjourned at all.

7Subsequent to the hearing, the Tribunal issued a Case Assessment Direction (“CAD”) seeking the parties’ written submissions about whether or not it was appropriate:

a. To defer the Tribunal’s proceedings until the applicant’s criminal charges have been disposed of, because of the applicant’s “right to remain silent”, section 13 of the Charter, or any other reason; or

b. To resume the Tribunal proceedings notwithstanding that the applicant’s criminal charge has not been disposed of; and,

c. Any update about the status of the criminal charges.

8The Tribunal directed the applicant to provide a copy of the CAD to his criminal counsel so that he may have the benefit of legal advice before his written submissions were filed with the Tribunal. The Tribunal gave the applicant the opportunity to file his own written submissions or have his lawyer file them for him.

deferral

The Parties’ Positions

9The applicant seeks deferral of the Tribunal proceedings. In his written submissions, he confirms that he has had the opportunity to consult with legal counsel regarding the CAD and that due to the seriousness of the charge against him, he has been advised to request that the Tribunal’s proceedings be adjourned until the criminal charges have been disposed of. Until then, he submits, he will be unable to answer questions that the respondents, and their counsel, may have.

10The corporate respondent and Mr. Maciag do not oppose adjourning the Tribunal’s proceedings pending conclusion of the criminal charge.

11Mr. Bachleda did not file any submissions pertaining to this issue.

Analysis

12The 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 (Rule 14.1). 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.

13In this case, there are ongoing criminal proceedings in which the applicant was charged following his termination from the corporate respondent based upon his allegedly fraudulent receipt of corporate monies. The facts in the criminal proceeding may overlap, perhaps significantly, with the facts alleged by the parties to this Application. This raises the possibility of inconsistent findings of fact if the Application is not deferred and runs concurrently with the criminal proceeding.

14Further, the Tribunal has deferred applications where a party to the Tribunal’s proceedings, be it applicant, respondent, or personal respondent, has been criminally charged and the charges relate to issues before the Tribunal. See, Miller v. Bernard, 2009 HRTO 1488; G.G. v. Image Printing and Signs, 2010 HRTO 1953, Hadley v. J.A.C.S. Cartage, 2009 HRTO 516; Duke v. Toronto (City), 2013 HRTO 413. This has been to protect the defendant’s right to remain silent in the criminal proceeding and to ensure a logical and orderly litigation of the various issues between the parties to avoid inconsistent findings of fact between the two adjudicative bodies.

15Accordingly, the Tribunal orders the deferral of the Application until the conclusion of the criminal proceeding against the applicant. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which the Application may be brought back on before the Tribunal after the criminal proceeding has concluded.

Request for order during proceedings

The Parties’ Positions

16After the CAD was issued, the corporate respondent and Mr. Maciag filed a Request for Order During Proceedings (“RFOP”) seeking to rely upon additional documentation at the hearing, specifically various cheques, time cards, and a “Report on the Result of Applying Specific Investigative and Forensic Procedures” prepared for the management of the corporate respondent by G&G Partnership, LLP. These respondents submit that while such documentation had been provided to the police, this documentation had not been filed with the Tribunal or given to the applicant.

17The applicant opposes these respondents now being able to file and rely upon such documentation and filed a Response to the RFOP objecting to this documentation. He submits that these respondents have ample time and resources to prepare for the hearing and file their materials, as compared with him, who is self-represented.

18Mr. Bachleda did not file a Response to the RFOP and the time for doing so has now elapsed.

Analysis

19While these respondents have not complied with the Tribunal’s disclosure obligations, the applicant does not allege any prejudice by the late disclosure of these documents. Accordingly, these respondents may rely upon the documentation appended to their RFOP if and when the hearing is rescheduled.