K.M. v. Kodama, 2014 HRTO 1074

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

K.M.

Applicant

-and-

Ron Kodama

Respondent

INTERIM DECISION

Adjudicator: Sheri Price

Date: July 22, 2014

Citation: 2014 HRTO 1074

Indexed as: K.M. v. Kodama

WRITTEN SUBMISSIONS

Ron Kodama, Respondent

Daniel Dawalibi, Counsel

1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent physician infringed the applicant’s rights under the Code by allegedly making certain derogatory remarks to the applicant based on the applicant’s gender identity during a May 5, 2010 medical appointment.

2The Application is scheduled to be heard on its merits on November 17, 18 and 19, 2014.

3This Interim Decision addresses the respondent’s request that the Tribunal defer consideration of the Application, pending the outcome of the respondent’s application for judicial review of the Tribunal’s Interim Decision 2014 HRTO 526, issued April 11, 2014 (the “Interim Decision”).

BACKGROUND

4The Application was filed in April 2011. By Notice of Hearing dated July 10, 2012, the Application was scheduled to be heard on its merits on April 9, 10, and 11, 2013.

5However, a few days before the hearing, on April 4, 2013, the respondent indicated that he intended to request that the Application be dismissed pursuant to s.45.1 of the Code on the basis that the substance of the Application had been appropriately dealt with in another proceeding, namely, a complaint by the applicant about the respondent to the College of Physicians and Surgeons of Ontario (“CPSO” or “the College”). In the alternative, the respondent took the position that the Application should be dismissed as an abuse of process. The respondent took the position that his Request to Dismiss should be determined on a preliminary basis.

6By way of background, I note that previously, in February 2012, the respondent had obtained the other parties’ consent to have any documents relating to the applicant’s CPSO complaint removed from the Tribunal’s file on the basis that they were not properly before the Tribunal, by virtue of s.36(3) of the Regulated Health Professions Act, S.O. 1991, c. 18.

7The applicant strongly opposed the respondent bringing the Request to Dismiss at such a late stage of the proceeding. Moreover, counsel for the applicant indicated that she could not commit to being prepared to address the Request as a preliminary matter, at the outset of the hearing.

8In an April 5, 2013 Case Assessment Direction, I suggested that, in the circumstances, it might be more fair, just and expeditious to hear the parties’ submissions on the respondent’s Request to Dismiss at the same time as their final arguments on liability. I directed the parties to be prepared to make submissions on the order of proceeding at the April 9, 2013 hearing, and also to be prepared to present their evidence and arguments on the merits of the case.

9However, on April 8, 2013, the parties wrote to the Tribunal jointly requesting that the respondent’s Request to Dismiss be determined as a preliminary issue and that the April 2013 hearing dates be adjourned in order to facilitate this. In the circumstances, the April 9, 10 and 11, 2013 hearing dates were adjourned by the Tribunal.

10The parties filed extensive written submissions on the respondent’s Request to Dismiss. In addition, at the parties’ joint request, an in-person hearing was convened on October 18, 2013, to hear the parties’ oral submissions on the Request.

11The Interim Decision denied the Request and directed the Application be set down, once again, for a hearing on its merits.

12Through consultation with the parties, the hearing was scheduled to resume on November 17, 18 and 19, 2014.

13After the Tribunal’s Notice of Hearing was issued, the respondent’s counsel wrote to the Divisional Court seeking to secure hearing dates that would permit the respondent’s application for judicial review of the Interim Decision to be determined in advance of the November 2014 hearing dates before the Tribunal. However, the Divisional Court Coordinator advised that, due to the Court’s availability, it would not be possible to have the application for judicial review heard, much less determined, before the November 17 to 19, 2014 hearing dates It is not known when the respondent’s Application for judicial review will be heard by the Court.

14On June 5, 2014, the respondent filed a Request for an Order during Proceedings, requesting that the Application be deferred, pending the outcome of his application for judicial review of the Interim Decision.

15The applicant consents to the respondent’s deferral request.

ANALYSIS AND DECISION

16The 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 of the Tribunal’s Rules of Procedure). The decision whether to defer an application is a matter of discretion, which the Tribunal exercises on the basis of the circumstances of each case.

17As the Tribunal has frequently stated, the purpose of deferral is to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

18In the circumstances of this case, I am not persuaded that the Application ought to be deferred pending the outcome of the respondent’s judicial review application before the Ontario Divisional Court in respect of the Interim Decision.

19Leaving aside whether a judicial review application can truly be considered to be a “concurrent proceeding” with respect to the facts and issues raised in the Application, in my view, deferral is not appropriate in this case because it would not serve the underlying purpose of deferral, namely the avoidance of inconsistent decisions on facts or law.

20In the case at hand, there is no risk that proceeding to the hearing of the merits will result in the Tribunal issuing a decision that is inconsistent with whatever decision may be made by the Divisional Court. This is because the Tribunal has already rendered its decision on the issues the respondent seeks to have addressed by the Court. Accordingly, deferring the Application would serve no purpose. There is no basis to defer an application where the Tribunal has already issued its decision on the matter being addressed elsewhere.

21In addition, although the respondent has framed his request as a request to defer, and not as a request for a stay of proceedings, some of the principles governing whether an application ought to be stayed pending a judicial review application are relevant to the issue at hand, and weigh against deferring the Application pending judicial review of the Interim Decision. The Tribunal’s decision in Washington v. Toronto Police Services Board, 2009 HRTO 640, at paras. 8 to 11, is particularly instructive:

It is a well-established principle of judicial review that “delays or interruptions occasioned by judicial review proceedings should be avoided except in ‘exceptional circumstances’”: King, supra at para. 26. As the Divisional Court explained in Ontario College of Art v. Ontario (Human Rights Commission), 1993 CanLII 3430:

For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.

The Divisional Court has emphasized that this approach should be applied by adjudicators in considering requests like this one, holding that a labour arbitrator erred in adjourning an arbitration pending a decision on a judicial review of an interim decision: Placer Dome Inc. v. United Steelworkers of America, Local 8533, [1994] O.J. No. 522.

These principles, in my view, are supported and strengthened by the provisions of the new Code, and, in determining requests for stays pending judicial review, the Tribunal should take the legislature’s guidance into account. Section 41 permits the Tribunal to “adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it” [emphasis added]. Decisions of the Tribunal are final and not subject to appeal or to being set aside in a judicial review unless the decision is patently unreasonable: s. 45.8.

Most important, s. 43(8) of the Code specifically addresses the issue of procedural rulings, providing as follows:

Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter.

The requirement for a procedural ruling to affect the “final disposition” of the matter in order to be set aside by a Court is, in my view, a particularly strong signal that the Tribunal should be reluctant to fragment or interrupt its proceedings as a result of an application for Judicial Review, absent exceptional circumstances.

22In my view, some of the principles articulated above apply with equal force to requests that an application to the Tribunal be deferred pending judicial review of an interim decision. The Ontario courts and this Tribunal have held that proceedings before administrative tribunals, such as this one, should not be delayed or interrupted by judicial review proceedings except in exceptional circumstances. In the case at hand, deferring the Application pending the outcome of the respondent’s judicial review application would certainly interrupt the proceedings and delay the hearing of the Application on its merits and there are no exceptional circumstances to justify it. This is further reason not to grant the request to defer.

23The Divisional Court’s prescription against “fragmented proceedings” also speaks against deferral of the Application pending the outcome of a judicial review application in respect of an interim decision. In the Ontario College of Art case, cited in Washington, the Divisional Court expressed a clear preference for having proceedings run their course before administrative tribunals, such as this one, before having the Court determine legal issues arising from the proceeding. In my view, it would be inconsistent with the Divisional Court’s direction to grant the request for deferral and delay the hearing of the Application on its merits.

24For all of the above reasons, I am not prepared to defer the Application, pending the outcome of the respondent’s application for judicial review of the Tribunal’s Interim Decision. That said, in all of the circumstances, I am prepared to consider a joint request to adjourn the hearing to an early date in 2015. If the parties wish to avail of this, then, within seven days of the date of this Interim Decision, they are directed to provide the Registrar with any three dates, which need not be consecutive, in January and/or February 2015 on which they are mutually available for the hearing of the Application on its merits. The Registrar will reschedule the hearing upon receipt of the alternative dates. If the parties cannot agree on alternative dates the hearing will proceed as presently scheduled.