Mandich v. Clinicare Health Services Wonderland Ltd., 2013 HRTO 1216

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Genna Mandich Applicant

-and-

Clinicare Health Services Wonderland Ltd., Naeem Muhammed and Angelica Tesseris Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: July 11, 2013 Citation: 2013 HRTO 1216 Indexed as: Mandich v. Clinicare Health Services Wonderland Ltd.

WRITTEN SUBMISSIONS

Genna Mandich, Applicant Self-represented

Naeem Muhammed, Respondent Jenny Stephenson, Counsel

Clinicare Health Services Wonderland Ltd., Respondent Christopher A. Sinal, Counsel

1This Application was filed on November 12, 2010, alleging sexual solicitation or advance in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended.

2The Application was deferred by way of Interim Decision 2012 HRTO 1407 pending the conclusion of a disciplinary process of the College of Physicians and Surgeons of Ontario (the "College").

3On March 14, 2013, the applicant filed a Request for Order During Proceedings asking that the Tribunal reactivate the Application because the College issued a decision on February 14, 2013. The respondents objected because, although the "findings" stage of the disciplinary process was completed, the "penalty" phase of the hearing process remained outstanding. By way of Interim Decision 2013 HRTO 598, the Tribunal denied the applicant's reactivation request.

4On June 7, 2013, the applicant filed a Request for Order During Proceedings ("Request") asking that the Tribunal reactivate the Application because respondent Muhammad has appealed the College's "findings" decision. The applicant states that she has been informed that the appeal could take a year to complete and that she seeks reactivation so that she can move on with her life.

5The corporate respondent and respondent Muhammed filed responses opposing the applicant's Request to reactivate on the basis that the College's "findings" decision has been appealed to the Superior Court of Justice (Divisional Court) and that the College's penalty decision is stayed pending the outcome of the appeal. The respondents argue that the Application should not be reactivated because the disciplinary process is not complete. The respondents note that the appeal seeks that the College's decision be set aside and a new hearing ordered.

DECISION

6Rule 14.1 of the Tribunal's Rules of Procedure provides that 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.

7The Interim Decision originally deferring this Application stated that deferral was necessary in order to avoid duplicitous proceedings.

8The 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 that parallel the Application. 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; Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750; and Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280.

9In Tsoref v. Frastell Property Management Inc., 2013 HRTO 697, the Tribunal noted that Tribunal decisions have deferred applications on the basis of appeals to the Divisional Court, citing Taucar v. University of Western Ontario, 2011 HRTO 550; Sawhney v. Law Society of Upper Canada, 2011 HRTO 926; and Volnyansky v. Peel (Regional Municipality), 2011 HRTO 833.

10I am sympathetic to the applicant's concern to move ahead with her life and appreciate that parties are entitled to expect the Tribunal to take timely action to resolve matters brought before it. But in my view, in the circumstances of this case, deferral is the most fair, just and expeditious way of proceeding with the Application. It is clear that the two proceedings would likely run concurrently and there is a risk of inconsistent findings of fact.

11As such, I conclude that it is appropriate to defer the Application pending completion of the appeal proceedings and any related College proceedings.

12Accordingly, the applicant's request to reactivate this Application is denied.

13I am not seized.