Mitchell v. The Greater Sudbury Police Services Board, 2014 HRTO 487

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jody Mitchell

Applicant

-and-

The Greater Sudbury Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: April 8, 2014

Citation: 2014 HRTO 487

Indexed as: Mitchell v. The Greater Sudbury Police Services Board

WRITTEN SUBMISSIONS

Jody Mitchell, Applicant

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The Greater Sudbury Police Services Board, Respondent

Glenn Christie, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of gender expression.

2The applicant alleges that the respondent discriminated against her when officers of the respondent police services board required her to remove her brassiere when she was incarcerated following a traffic incident. In a letter dated March 21, 2014, the Tribunal directed the parties to file written submissions by April 4, 2014 regarding whether the Tribunal should defer the Application pending the conclusion of the criminal proceedings arising out the traffic incident because the applicant has made a challenge pursuant to the Canadian Charter of Rights and Freedoms (the “Charter”) on the same issue that she raised in her Application. The Tribunal gave this direction based on a statement in the respondent’s Response to the effect that the applicant filed an application pursuant to Charter in her criminal proceedings in which she claims her Charter Rights were infringed because she was required to remove her brassiere and boots prior to being locked in the cells at the police station.

Submissions

3The respondent filed its submissions on April 3, 2014. The applicant did not file submissions and the time for doing so has past. The respondent submitted that deferral is not necessary. The respondent submitted that it would appear that the applicant may be making a Charter motion at her criminal trial, but the respondent cannot be certain. The respondent noted that the applicant stated in her Reply that she intends to proceed with this Application regardless of the outcome of the criminal matter. The respondent acknowledged that the proceedings arise out of the same incidents; therefore, there is a risk of inconsistent decisions regarding the facts. The respondent submitted, however, that the risk of inconsistent decisions on the law is low because the criminal court would likely give little or no consideration to the Code in determining a claim of a Charter breach. The respondent submitted that this is particularly so if the Charter claim relates to unreasonable search and seizure, which the respondents submitted may be the case given the case law the applicant has cited.

Analysis and Decision

4The 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). 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 same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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: see Calabria v. DTZ Barnicke, 2008 HRTO 411 and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

5As noted above, the Tribunal raised the issue of deferral because the respondent indicated that the applicant made a Charter claim based on the same facts on which this Application is based, i.e., the alleged requirement to remover her brassiere. The respondent now states that it cannot be certain that the applicant is indeed bringing a Charter application. Accordingly, it is uncertain whether the applicant has or will bring a Charter application related to this Application and in my view deferral is not appropriate on a speculative basis. The Tribunal may revisit this decision should the applicant initiate a Charter application based on the facts at issue in this Application.

6The Application shall not be deferred at this time. The file shall be returned to the Registrar for processing.

7I am not seized.