Ardalan Robati v. The Corporation of the City of Markham, 2013 HRTO 1463

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ardalan Robati Applicant

-and-

The Corporation of the City of Markham Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: August 28, 2013 Citation: 2013 HRTO 1463 Indexed as: Robati v. Markham (City)

WRITTEN SUBMISSIONS

Ardalan Robati, Applicant Self-represented

The Corporation of the City of Markham, Respondent Lisa Riegel, Counsel

1This is an Application filed on January 22, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of race, colour and citizenship.

2The Application describes several incidents in which the applicant alleges he experienced discrimination while attempting to get permission to make modifications to his property, which is located in the Unionville Heritage Conservation District.

3In a previous Interim Decision in this matter, 2013 HRTO 1162, the Tribunal directed the parties to make written submissions regarding whether the Tribunal should defer the matter, pending the retrial of charges laid against the applicant under the Ontario Heritage Act, R.S.O. 1990, c. O.18 (“OHA”), for paving his backyard without a permit.

Applicant’s Submissions

4The applicant submitted that the new trial regarding the charges under the OHA was scheduled for August 15, 2013 before the Ontario Court of Justice (“the Court”). The applicant submitted that the trial would determine not whether he was entitled to pave his backyard, but whether he paved his backyard without a permit. The applicant also submitted that paving his backyard is only one of the issues arising out of his Application. Accordingly, the applicant submitted that the Tribunal should not defer this Application.

Respondent’s Submissions

5The respondent submitted that the Court proceeding is based on substantially the same facts as those described in the Application. The respondent submitted that the Court matter involves the alteration of a property without a permit under the OHA, which also contravened the respondent’s by-laws. The respondent states that the Application is in large part based on the same facts as the Court proceeding. The respondent submitted that both the Court and the Tribunal would have to make findings of fact regarding, amongst other things, the alteration to the applicant’s property, the application of the respondent’s by-laws and the OHA, by-law enforcement procedures and the lawful issuance of an information under the Provincial Offences Act, R.S.O. 1990, c. P.33. The respondent submitted that deferral of the Application will prevent inconsistent findings of fact and repetitious litigation. The respondent noted that the new trial in the Court proceedings is scheduled for August 15, 2013; therefore, deferral will not cause undue delay or prejudice to the applicant.

Decision

6The 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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, 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 Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

7I agree with the respondent that the facts in the Court proceedings and the Application before the Tribunal overlap significantly. Where there is such overlap, deferral is normally appropriate given the potential for inconsistent results in concurrent proceedings. The proceedings in this matter, however, are not concurrent. The parties indicate that the new trial in the Court proceeding was scheduled for August 15, 2013, and there is no indication that it did not proceed or that the results of the trial are subject to appeal. Consequently, it does not appear that there is another proceeding to which the Tribunal could defer. In these circumstances, the Application shall proceed.

8The Application shall be returned to the Registrar for processing.