V.F. v. A[...] and J.R., 2013 HRTO 481

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

V.F.

Applicant

-and-

A[...] and J.R.

Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: March 21, 2013 Citation: 2013 HRTO 481 Indexed as: VF v A[...]

WRITTEN SUBMISSIONS

V.F., Applicant Self-represented

J.R., Respondent Shannon O’Connor, Counsel

A[...], Respondent Michael Cooper, Counsel

Introduction

1The purpose of this Interim Decision is to deal with a Request for Order During Proceeding filed by J.R., the personal respondent, seeking deferral of his Response and consideration of the Application pending completion of a criminal proceeding.

2The Application was filed on November 23, 2012, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The Application alleges discrimination with respect to employment on the basis of sex and sexual solicitation.

3The Application alleges the applicant was subject to sexual comments, conduct and/or sexual solicitation from colleagues, supervisors and management including the personal respondent and that the corporate respondent, the applicant’s employer, failed to provide her with a harassment-free workplace.

4The Application alleges that the personal respondent, who is a supervisor for the corporate respondent, made unwelcome sexual comments to the applicant and physically touched her including on September 13, 2012. On December 16, 2012, the personal respondent was charged with sexual assault with a weapon in relation to the events that took place between the personal respondent and applicant on September 13, 2012.

Request for Deferral

5The personal respondent submits deferral in this matter is appropriate. He submits that the criminal proceedings are now underway and that proceeding with the Application, including obliging the personal respondent to complete his Response, will prejudice the personal respondent’s criminal defence. He submits that given that the criminal charge arises out of some of the same alleged facts that underline the Application, a failure to defer may lead to concurrent proceedings and inconsistent decisions. The personal respondent submits that the Tribunal has deferred Applications in light of concurrent criminal proceedings and cites, by way of example, Briggs v. Toronto Police Services Board, 2013 HRTO 46.

6The applicant opposes deferral, submitting that the Application and the pending criminal proceedings will deal with only some of the same facts, namely the events of September 13, 2012. The applicant submits the Application is significantly broader in scope as it relates to the applicant’s experiences with a number of fellow employees over months and the corporate respondent’s failure to provide a discrimination-free workplace. The applicant submits that the two proceedings involve different legal issues and, importantly, different remedies for the applicant.

7The applicant submits that the personal respondent has not shown the prejudice he would face if the Application was to proceed. The applicant submits that the prejudice in this case would be to the applicant if the application was to be deferred and indefinitely delayed as it would have negative effects on the applicant who continues to be employed by the corporate respondent. The applicant further submits there is no indication that the criminal proceeding is underway, as claimed by the personal respondent, given no trial date has been set in the personal respondent’s criminal proceedings.

8The personal respondent relies on the Tribunal decisions in Mandich v. Clinicare Health Services Wonderland Ltd., 2011 HRTO 944, Zissakos v. Toronto Transit Commission, 2010 HRTO 2018, and Martinez v. Peel Police Services Board, 2008 HRTO 434, to support her contention that deferral is not automatic simply because the parties and/or facts underlying the Application are also involved in another proceeding and that an overlap in some underlying facts can be outweighed by significant differences in the proceedings.

9The corporate respondent takes no position on the personal respondent’s request for deferral but opposes the applicant’s alternative request that if the Tribunal allows the deferral against the personal applicant that the Application should proceed in respect to the allegations against the corporate respondent.

DECISION

10The 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). While deferral is not automatic, it is often granted to avoid adjudicative duplication. 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

11I accept the applicant’s contention that the overlap in the two proceedings is limited given the broader nature of the Application allegations. I am also mindful of when the criminal proceedings might take place, given that there is no information before the Tribunal to indicate that a hearing date to consider the personal respondent’s criminal charge has been set. I also understand the applicant’s concern that she is not a party to the criminal proceedings and has no remedy available to her in those proceedings. Moreover, delays in having her Application considered may have an effect on her employment with the corporate respondent.

12However, the Tribunal has often deferred applications where there are ongoing criminal proceedings involving the parties. See, for example, Briggs v. Toronto Police Services Board, 2013 HRTO 46, Philadelphia v. Serco Des, 2012 HRTO 241, and Miller v. Bernard, 2010 HRTO 1488.

13In considering the particular circumstances of this case I am of the view the factors raised by the applicant are ultimately outweighed by considerations in favour of deferral. While it is true the Application raises a broad range of allegations, the alleged events of September 13, 2012 constitute a particularly significant allegation in the Application. In my view if the Application is not deferred and it runs concurrently with the personal respondent’s criminal proceeding there is a possibility of inconsistent findings of fact on what will be an important issue for determination before the Tribunal.

14I also accept that the personal respondent’s rights and interests in the criminal proceedings must be considered and that that his participation in the Tribunal’s process prior to his criminal proceedings may affect these rights. As the Tribunal determined in Wright v. Dhawan, 2009 HRTO 1476, and in Duke v. Toronto (City), 2013 HRTO 413, 2013 HRTO413, a person’s right under the Canadian Charter of Rights and Freedoms (the “Charter”) to remain silent as part of a criminal proceeding may be jeopardized if obliged to participate in the Tribunal process prior to a criminal proceeding (for example, by being required to file a Response and a will say statement).

15Given these circumstances, I find that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the personal respondent’s criminal proceedings.

16In making this decision I have considered the applicant’s alternative request to proceed with her Application against the corporate respondent while deferring the Application against the personal respondent. This alternative request is denied. I agree with the corporate respondent’s submissions that this would, in effect, result in the Tribunal hearing two separate applications, one against the corporate respondent the other against the personal respondent. This would entail duplicate proceedings involving similar facts, allegations, witness testimony and evidence and would represent a poor use of the Tribunal’s resource. More importantly, it is likely that the personal respondent would be a witness for the corporate respondent, raising the same issues with respect to the personal respondent’s Charter rights.

ORDER

17The Application is deferred pending the conclusion of the personal respondent’s criminal proceedings. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.

18The personal respondent will not be required to file a Response until 35 days after the date of the personal respondent’s criminal proceeding concludes.

19I am not seized of this matter.