HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tracey Beni Applicant
-and-
Sarnia Police Services Board Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson Date: February 26, 2013 Citation: 2013 HRTO 329 Indexed as: Beni v. Sarnia Police Services Board
WRITTEN SUBMISSIONS
Tracey Beni, Applicant Peter Mancini, Representative
Sarnia Police Services Board, Respondent Paula M. Rusak, Counsel
Introduction
1This Application was filed on November 29, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination in employment on the basis of disability, sex and reprisal.
2By Notice of Confirmation of Hearing dated June 20, 2012, the Tribunal confirmed that this matter is scheduled to be heard on March 12, 13, and 14, 2013.
3The purpose of this Interim Decision is to address a Request for an Order During Proceedings (“RFOP”) filed by the applicant on January 28, 2013, seeking deferral of the Application pending an appeal to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The respondent opposes the request to defer.
Background
4On January 10, 2011, the respondent filed a Request for Summary Hearing and an RFOP to have portions of the Application dismissed on the basis of no reasonable prospect of success, delay, and for not establishing a prima facie case.
5In an Interim Decision dated April 19, 2012, following a summary hearing, 2012 HRTO 798, the Tribunal dismissed some of the allegations in the Application on the basis of delay. Allegations in the Application that remain include that the applicant was subjected to discrimination in a promotional process in July 2009, and that she filed a grievance alleging discrimination in the process, shortly after which she was subjected to reprisals and further discrimination, including a transfer to a position in Court Services in which she was not accommodated.
RFOP
6The applicant’s RFOP seeking deferral simply states that the applicant has appealed to the WSIAT regarding some of the issues contained in the Application.
7In its Response to the RFOP dated February 6, 2013, the respondent submits that the issues before the Tribunal include whether the job functions in Court Services were suitable, and whether accommodation was provided to the applicant. The respondent submits that both of these issues were dealt with by the Workplace Safety and Insurance Board (“WSIB”) in a decision dated May 19, 2010. The respondent submits that the applicant appealed the May 19, 2010 WSIB decision, but the appeal was later withdrawn, without prejudice to the applicant’s continuation of another appeal of a different WSIB decision unrelated to the facts and issues in this Application. The respondent denies, therefore, that any issues currently before the WSIAT are matters that will be dealt with at the hearing of this Application.
8The respondent also submits that this Application was filed over two years ago and dates for a hearing have been set, whereas, even if there was some nexus between the WSIAT matter and this Application, no date has been set for a WSIAT hearing. Lastly, the respondent submits that it has incurred costs and spent time in preparing its “will-say” statements and documents, and delivering and filing these materials on January 28, 2013, in compliance with the Tribunal’s requirements for the hearing on March 12, 13 and 14, 2013.
DECISION
9The Tribunal may defer consideration of an application on such terms as it may determine and on its own initiative. See Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. In considering whether to defer an application, the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
10In the present case, based on the parties’ materials, I am not satisfied that there is any overlap with respect to the issues raised by this Application and any matter that is currently before the WSIAT. In addition, this Application was filed over two years ago, and is scheduled to be heard shortly. There is no indication that a hearing is currently scheduled before the WSIAT on any issues related to this Application. The respondent has also delivered and filed documentary materials for the hearing in this matter, including witness summaries for eight witnesses, on January 28, 2013, as required by the Tribunal’s Rules.
11In my view, based on the materials before me, it would not be fair, just and expeditious to defer this Application pending an appeal to the WSIAT. The applicant’s RFOP to defer the Application is denied.
DIRECTIONS
12The applicant is directed to immediately deliver to the respondent, and file with the Tribunal, the materials required under Rules 16 and 17 of the Tribunal’s Rules. If the applicant has not complied with this direction within 7 days of the date of this Interim Decision, the Application may be dismissed as abandoned.
Dated at Toronto, this 26th day of February, 2013.
”signed by”
Brian Eyolfson Vice-chair