Sugarman v. Farant, 2013 HRTO 488

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharna Sugarman

Applicant

-and-

John Farant

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: March 22, 2013

Citation: 2013 HRTO 488

Indexed as: Sugarman v. Farant

WRITTEN SUBMISSIONS

Sharna Sugarman, Applicant ) Self-represented

John Farant, Respondent ) Self-represented

INTRODUCTION

1The purpose of this Interim Decision is to decide whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a proceeding before the Law Society of Upper Canada (“LSUC”).

BACKGROUND

2The respondent and the applicant were in a solicitor-client relationship. On May 1, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent subjected her to discrimination and reprisal with respect to services. In section 14 (“Other Proceeding – in Progress”), the applicant acknowledged that the facts of the Application are also part of a proceeding before the LSUC, but declined to request that the Tribunal defer her Application until the proceeding before the LSUC is completed.

3On July 26, 2012, the respondent filed a Response, which denied the allegations of discrimination and reprisal, but left section 8 (“Request to Defer”) blank.

4On September 5, 2012, the Tribunal issued a Case Assessment Direction (“CAD”), which requested written submissions from the parties as to whether the Tribunal should defer consideration of the Application pending the conclusion of the proceeding before the LSUC.

5Both parties filed submissions which essentially stated that the applicant’s complaint before the LSUC was inactive. As such, on February 4, 2013, the Tribunal issued a further CAD, which stated that the Tribunal would not defer consideration of the Application.

6However, on February 4 and 5, 2013, the applicant filed further submissions, which stated that her complaint before the LSUC is, in fact, active. She stated that the LSUC is currently investigating her complaint. She also stated that the Tribunal should not defer consideration of the Application pending the conclusion of the proceeding before the LSUC because, although her complaint before the LSUC and her Application before this Tribunal are similar and are both based on discrimination, the LSUC and the Tribunal are different agencies, and she wants both processes to be completed in order to get on with her life.

7On February 5, 2013, the respondent filed further submissions, which also stated that the applicant’s complaint before the LSUC is, in fact, active. He stated that all disclosure and replies have been completed in the proceeding before the LSUC, and the parties are waiting for the next step. With respect to the deferral issue, the respondent stated that he is not sure whether this Tribunal can proceed with the Application until the LSUC has disposed of the complaint, and that he will leave this matter in the Tribunal’s hands.

ANALYSIS

8Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that 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. 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.

9In Baghdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

10In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. I appreciate that the applicant has a valid interest in having her Application before this Tribunal dealt with expeditiously, but in my view, this interest is outweighed by other factors, including the fact that she filed a complaint with the LSUC first, the fact that the proceeding before the LSUC is at a more advanced stage than the proceeding before this Tribunal, the potential for duplication of evidence in two concurrent proceedings, and the possibility of inconsistent findings of fact and law.

11Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the proceeding before the LSUC and any related reviews or appeals.

12Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

ORDER

13The Application before this Tribunal is deferred pending the conclusion of the proceeding before the LSUC and any related reviews or appeals.

14I am not seized of this matter.