Sheryl Abbey v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, 2014 HRTO 495

Human Rights Tribunal of Ontario

BETWEEN:

Sheryl Abbey Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle Date: April 9, 2014 Citation: 2014 HRTO 495 Indexed as: Abbey v. Ontario (Community and Social Services)

Written Submissions

Sheryl Abbey, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services, Respondent Mimi Singh, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant alleges that the respondent denied her "training and startup under the ODSP program". She alleges that she was denied this funding due to the fact that her employees were going to be "contracted out employees". She alleges that this is discriminatory. She seeks remedies including financial compensation which appears to be related to the amount to which she feels she was entitled from the ODSP program.

3The respondent denies that it has discriminated against the applicant contrary to the Code. In any event, it submits that an appeal is scheduled to be heard by the Social Benefits Tribunal on July 16, 2014, to deal with the substance of the allegations in this Application.

4On February 28, 2014, the Tribunal sent the Response to the applicant and directed her to file a Reply (Form 3) to the Response, including complete submissions in response to the respondent's request to defer.

5The applicant has filed a Form 3, in which she addresses only the respondent's request to defer. She submits that the Tribunal should not consider deferral of this Application as "all Social Benefit Appeals have been deferred since my application is before the HRTO." With respect to the July 16, 2014 appeal date, she has included a Notice of Hearing from the Social Benefits Tribunal, dated December 20, 2013, advising her that a hearing has been scheduled for her appeal on July 16, 2014, and providing the location and time. The copy provided by the applicant with her submissions contains handwritten notes, which appear to have been authored by her, in which she states that two matters are to be heard together, she states that a morning start time is not possible for her due to her disability, and states, that "These appeals must be heard after an upcoming court proceeding – * not before".

Deferral considerations

6Rule 14.1 of the Tribunal's Rules of Procedure states 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.

7In Baghadasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paragraphs 18-19:

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.

8If a person has commenced another proceeding that raises the same issues, it may be appropriate for the Tribunal to defer the Application until the other proceeding is complete. First, it may not be fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Second, there is a potential for inconsistent findings in the two concurrent proceedings. It is generally preferable for one proceeding to be completed before the other commences.

9In this case, there is significant overlap between the circumstances giving rise to the Application and the appeal to the Social Benefits Tribunal and if the Social Benefits Tribunal appeal and the Application proceed at the same time, the parties will be required concurrently to address substantially the same issues in two different forums. There is a potential for inconsistent findings.

10The remedies available to the applicant under the Social Benefits appeal process and the remedies she seeks from the Tribunal appear to overlap.

11A reason not to defer an Application is that deferral will likely postpone the hearing of the Application by the Tribunal. In general, it is preferable to adjudicate cases close in time to the events in question and applicants and respondents are entitled to expect the Tribunal to deal with Applications in a timely fashion. The delay in adjudicating the Application may be longer if the other proceeding is in the early stages.

12In this case, however, it appears that the Social Benefits Tribunal has indicated that the appeal will be heard shortly, and in any event is likely to be completed before this Application would be scheduled for a hearing. In these circumstances, therefore, it would not appear that deferral will result in significant further delay.

13In light of these considerations, I am satisfied that it would be fair overall to the parties to defer, having regard to the nature and status of each proceeding.

14Accordingly, I find that the Application should be deferred until the Social Benefits Tribunal appeal has been concluded. The Tribunal's Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding. In the event that the Social Benefits Tribunal appeal has already been concluded and in the event that she wishes to proceed with this Application, the applicant may file her request to proceed within 60 days of the date of this Interim Decision.

15I am not seized of this matter.