Barbara Dindial v. College of Nurses of Ontario, 2014 HRTO 1369

Human Rights Tribunal of Ontario

BETWEEN:

Barbara Dindial Applicant

-and-

College of Nurses of Ontario Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: September 16, 2014 Citation: 2014 HRTO 1369 Indexed as: Dindial v. College of Nurses of Ontario

1The issue in this Interim Decision is whether the Application should be deferred pending the conclusion of the respondent’s fitness to practice proceedings (“FTP”).

2The Application alleges discrimination with respect to membership in a vocational association because of race, colour, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The applicant disputes actions taken by the respondent and its reliance upon the findings of an individual chosen by the respondent’s Inquiries, Complaints and Reports Committee (“ICRC”) regarding her capacity, as well as decisions of the ICRC and ongoing proceedings before the FTP committee regarding her fitness to practice.

4The respondent filed a partial Response and requests that the Application be deferred pending the conclusion of the FTP proceedings which are scheduled to continue on October 24, 2014. The applicant opposes the deferral of her Application. She expresses concern that the respondent will not come to a timely resolution on the issues before it, noting that issues before it commenced approximately 14 months earlier and that the proceedings may not conclude on October 24, 2014. Furthermore, she submits that there may be bias in the respondent’s proceedings, it has failed to consider key facts and information pertaining to her situation, and that a deferral may have an impact upon the outcome of the proceedings.

Analysis

5Under Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative. 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

6Some 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.

7In Hamalengwa v. Law Society of Upper Canada, 2012 HRTO 668, the Tribunal’s then Associate Chair wrote at para. 13:

In my view, the Tribunal should normally defer to a professional disciplinary tribunal that has the jurisdiction to hear both allegations of professional misconduct and Code issues. Such tribunals have the mandate to protect the public and regulate the conduct of professionals, and balancing of individual rights and the public interest is central to this work (see College of Nurses v. Trozzi, 2011 ONSC 4614 at paras. 35-36 (Div. Ct.)). When allegations of professional misconduct are properly before the relevant body and related Code issues can be raised there, the Tribunal should defer to avoid unnecessary duplication and complication.

8While the respondent’s issues with the applicant pertain to capacity, rather than discipline, in my view, the circumstances of this case favour deferral. The issues that are before the FTP proceedings and the pending October 24, 2014 hearing date all support deferring this Application pending conclusion of the FTP proceedings.

9The Application will therefore be deferred pending the completion of the FTP proceeding.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the FTP proceeding, and that this must be filed no later than 60 days after the conclusion of the other proceeding.

11I am not seized with this matter.