Moreland v. St. Michael’s Hospital, 2013 HRTO 140

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Moreland

Applicant

-and-

St. Michael’s Hospital

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: January 25, 2013

Citation: 2013 HRTO 140

Indexed as: Moreland v. St. Michael’s Hospital

WRITTEN SUBMISSIONS

Mark Moreland, Applicant

Daniel Lublin, Counsel

St. Michael’s Hospital, Respondent

Kate Dearden, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of disability and reprisal. The Application alleges discrimination in relation to a series of events which culminate in the termination of the applicant’s employment. The applicant has also filed a statement of claim in a civil proceeding in which he seeks damages from the respondent for wrongful dismissal.

2Following the filing of the Application the Tribunal issued a Notice of Intent to Dismiss to the applicant on the basis that the Application appeared to be outside the Tribunal’s jurisdiction, pursuant to s. 34(11) of the Code. Section 34(11) bars a person from making an application to the Tribunal where there is an ongoing civil action in the courts which seeks remedies for discrimination arising from the same events.

3On December 3, 2012, I issued an Interim Decision, 2012 HRTO 2262 (“the Interim Decision”), in which I determined that the Tribunal had jurisdiction to hear the Application because the Application was not barred by s. 34(11) and consequently the Application would be delivered to the respondent and the respondent would be required to file a Response.

4On December 18, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) seeking submissions from the parties on whether the Interim Decision should be reconsidered and revised. The CAD noted that the test the Tribunal has typically applied in considering jurisdiction at this early stage is whether it is plain and obvious that an application is outside its jurisdiction. Accordingly, the CAD indicated it may have been an error for the Tribunal to find that the Application falls within the Tribunal’s jurisdiction. The CAD also directed the parties to provide submissions on whether the Application should be deferred pending the conclusion of the applicant’s civil action.

5Both parties submit that the test I should have applied in the Interim Decision was whether it was plain and obvious that the Application was outside the Tribunal’s jurisdiction rather than making a finding that the Tribunal had jurisdiction. I agree. This is the test the Tribunal typically applies at this early stage of an Application (See Cochrane v. Workplace Safety and Insurance Board, 2009 HRTO 1596).

6I am satisfied that the Interim Decision should have determined that it was not plain and obvious that the Application was outside the Tribunal’s jurisdiction. The applicant’s Statement of Claim in his civil action is for a wrongful dismissal. It does not refer to the Code and does not state that it is seeking damages for a violation of the Code. Under these circumstances it is not plain and obvious that s. 34(11) of the Code bars the Application from proceeding.

7Both parties have provided submissions on whether the Application should be deferred pending the outcome of the applicant’s civil action.

8Pursuant to 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 (Rule 14.1).

9Deferral 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. As noted by both parties 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 and 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 Christianson v. College of Physicians and Surgeons, 2009 HRTO 438.

10The applicant opposes deferral. The applicant submits that the subject matter of the applicant’s civil action and Application are distinct, that the civil action deals exclusively with a claim for wrongful dismissal arising out the termination of the applicant employment while the application deals exclusively with a breach of the Code. The applicant submits that the remedies being sought in each action are distinct and that it would not be fair to defer given that civil actions can take years to resolve. The applicant submits that there is a significant risk that the evidence required to determine that Application will be lost or diluted over time if the Application is deferred.

11The respondent submits that the Application should be deferred in order to avoid the possibility of concurrent proceedings arriving at different findings of fact and law. The respondent submits that this could occur because there is a significant overlap in the legal and factual issues between the Application and civil action, that the adjudicators in each proceeding will need to make findings related to the applicant’s performance as an employee, the issues that gave rise to the termination of the applicant’s employment and the applicants entitlement to various benefits during and after his employment. The respondent further submits that the civil action is more advanced than the Application, that in the civil action the parties are in the process of finalizing a discovery plan which would include scheduling a mediation date and setting dates for discovery within six months.

12I am of the view that it is appropriate to defer this Application pending the completion of the applicant’s civil action. Although the applicant’s civil action does not raise human rights issues or include a claim for human rights remedies, there is considerable overlap in the underlying events giving rise to both the civil action and the Application. In my view, it is inevitable that the Tribunal will be required to make findings of fact and address issues related to the applicant’s employment and termination of his employment that will also be before the court. Deferral will avoid the possibility of concurrent proceedings arriving at inconsistent findings of fact and law. It would also not be fair, in my view, to require the parties to engage in simultaneous legal proceedings involving many of the same issues and facts. The rational and orderly litigation of the various issues between the applicant and his employer favours deferral.

13I note that a deferral under the Code does not require that the other proceeding must potentially dispose of all of the issues raised in an Application. See Bradshaw v. Complex Services, 2010 HRTO 1215.

14I further note that the applicant’s civil action predates his Application and it does appear that the parties are currently engaged in taking identifiable steps to pursue it. Although the timetable for the civil action is not certain I do not find that fairness requires that the Tribunal proceed with the Application at this time.

15I am not seized of this matter

ORDER

The Tribunal orders as follows:

i. The directions in Interim Decision 2012 HRTO 2262 are set aside.

ii. The Application is deferred pending the completion of the applicant’s civil action. The parties are directed to Rules 14.3 and 14.4, which outline the process by which the Application may be brought back on after the civil proceeding has been concluded.