Victoria Mahoney v. Dentistry at Riverglen, 2014 HRTO 278

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Victoria Mahoney

Applicant

-and-

Dentistry at Riverglen

Respondent

INTERIM DECISION

Adjudicator: Ruth Carey

Date: March 4, 2014

Citation: 2014 HRTO 278

Indexed as: Mahoney v. Dentistry at Riverglen

WRITTEN SUBMISSIONS

Victoria Mahoney, Applicant

Self-represented

Dentistry at Riverglen, Respondent

Kenneth Byers, Counsel

1This is an Application filed on November 21, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related criminal proceeding.

2On January 15, 2014, the respondent filed a Response to the Application in which it asks that the Application be deferred pending the resolution of criminal charges pending against Shlomo Sharer (the "respondent's owner") who is the owner of the respondent, a sole proprietorship. On February 4, 2014, the applicant filed a Reply which says that she does not want the Application to be deferred because they are two separate cases "with two separate authorities and should be dealt with in a timely manner".

3The allegations in the Application overlap with the criminal proceedings in that the Application alleges that on December 15, 2012, the respondent's owner touched the applicant; this touching is the basis for a sexual assault charge that is pending. The charge sheet was provided by the respondent. The narrative attached to it contains other factual allegations of a less specific nature that are also included in the Application; namely, that incidents of touching and kissing continued until the applicant went on sick leave.

4Section 45 of the Code says the Tribunal may defer an application in accordance with the Tribunal's rules. Rule 14.1 of the Tribunal's Rules of Procedure says that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

5The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. In Baghdasserians v. 674469 Ontario, 2008 HRTO 404 at paras. 18-19, the Tribunal discusses the reasons why deferral may be considered in general terms as follows:

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.

6In this instance the criminal proceedings pre-date the Application which I take to mean they are well advanced. More importantly, the criminal charges stem from the same facts that form a substantial part of this Application. As a result, there is significant potential for a factual overlap between the two proceedings which raises the distinct possibility of inconsistent findings of fact if the Application runs concurrently with the criminal proceeding. Given all of the circumstances here, deferral is the most fair, just and expeditious way of proceeding with the Application.

7The 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 been completed.

DECISION

8This Application is deferred until the criminal proceeding involving the respondent's owner is concluded.