Duke v. Toronto (City), 2013 HRTO 413

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emily Duke

Applicant

-and-

City of Toronto and Peter Konoplicky

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: March 11, 2013

Citation: 2013 HRTO 413

Indexed as: Duke v. Toronto (City)

APPEARANCES

Emily Duke, Applicant

Angela Chaisson, Counsel

City of Toronto and Peter Konoplicky, Respondents

Melany Franklin and Naomi Calla, Counsel

1This Application, filed on November 30, 2011, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges sexual harassment, sexual solicitation, reprisal, and discrimination with respect to employment because of sex and sexual orientation.

2On November 22, 2012, the personal respondent was charged criminally with seven counts of sexual assault and three counts of criminal harassment. The respondents submit the alleged facts upon which the criminal charges are based are the same facts that are at issue in the Application. The personal respondent is subject to several conditions relating to the criminal charges. These conditions include abstaining from communicating, directly or indirectly, with the applicant. The personal respondent’s first appearance on the criminal charges was on January 17, 2013.

3By Notice of Confirmation of Hearing dated August 3, 2012 (the “Notice of Hearing”), the Application was scheduled for a hearing on April 3-5, 2013. The Notice of Hearing required the parties to file their hearing documents and witness will-say statements by February 18, 2013. This date was subsequently extended to March 11, 2013.

4On February 4, 2013, the respondents filed a Request for Order During Proceedings (the “Request”) asking the Tribunal to defer the Application pending the outcome of the criminal charges against the personal respondent. The respondents anticipate a trial of the criminal charges will take place in approximately 18 months.

5The applicant opposes the Request on the following grounds: the respondents have not provided any particulars relating to the criminal charges other than the no-contact condition; the criminal proceedings will not address the human rights allegations and will not provide human rights remedies; the applicant is not a party to the criminal proceedings; and a deferral would cause the applicant psychological trauma, increased legal costs and result in unnecessary delay. The Applicant notes she has been off work pending the outcome of the Application and it would be unjust to require her to be off work for another 18 months without full compensation.

6The Tribunal has deferred applications where the personal respondent has been charged criminally. See G.G. v. Image Printing and Signs, 2010 HRTO 1953, and Wright v. Dhawan, 2009 HRTO 1476. Counsel for the respondents has advised the Tribunal that the personal respondent has been charged criminally with respect to the same incidents that form the substance of this Application. I have no reason to question the submission of counsel in this regard and it is supported by the bail condition that the personal respondent has no contact with the applicant.

7While I am sympathetic to the applicant’s concern regarding the lengthy delay that will result if the Application is deferred pending the resolution of the criminal charges, in my view, the possible effects on the personal respondent’s Charter rights outweigh the concerns raised by the applicant. The personal respondent has the right to remain silent in the criminal proceeding. That right may be jeopardized if the Application proceeds because the personal respondent will, in all likelihood, testify at the hearing before the Tribunal and will file a will-say statement in advance of the hearing. While I agree that the length of the delay of the Tribunal proceeding is disconcerting, the personal respondent is not responsible for the fact that criminal charges were laid one year after the Application was filed.

8From the submissions filed by the respondents, it is apparent that the facts that will be considered in the criminal proceeding overlap the facts before the Tribunal. The applicant is the complainant in the criminal proceeding and the personal respondent is the accused. The same series of events at issue in the Application are at issue in the criminal proceeding. As such, a logical and orderly litigation of the various issues between the parties favours deferral in order to avoid inconsistent findings of fact between the two adjudicative bodies. See Philadelphia v. Serco Des, 2012 HRTO 241 at para. 8.

9Accordingly, the Tribunal orders the deferral of the Application until the conclusion of the criminal proceeding against the personal respondent. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on before the Tribunal after the criminal proceeding has concluded.

10I am not seized.