HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Helena Pereira
Applicant
-and-
Hamilton Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Pereira v. Hamilton Police Services Board
APPEARANCES
Helena Pereira, Applicant
Bay Ryley, Counsel
Hamilton Police Services Board, Respondent
Patty Murray, Counsel
Background
1On February 27, 2008, the applicant commenced an action against the respondent. This action was settled on October 12, 2012, and the applicant executed a release.
2The applicant then filed this Application on May 30, 2013, which makes allegations commencing in February 2007. The applicant also alleges in the Application that she is being unfairly disciplined by the respondent.
3The respondent filed a Response seeking the dismissal of the Application on a number of grounds, including because the applicant had signed a release, for delay and because the Application had no reasonable prospect of success. The respondent submitted that in the alternative that the Application was not dismissed that it should be deferred pending the conclusion of the proceeding under the Police Services Act (the “PSA”) which is currently addressing some of the discipline that the applicant has complained of in the Application.
4On October 23, 2013, the Tribunal directed a preliminary hearing to determine whether the Application should be dismissed in whole or in part because the applicant signed the release.
5On June 6, 2014, the applicant’s counsel filed a Form 11, response to request for order, which addresses all of the preliminary issues raised by the respondent in its Response. The applicant also made submissions opposing the deferral of the Application. Attached thereto is a Ruling on Preliminary Motion (the “Ruling”) issued by Superintendent (Retired) M.P.B. Elbers, in which he declined to adjourn the PSA hearing. That motion was brought by the applicant to defer the PSA hearing pending the conclusion of this Application.
6A preliminary hearing was convened on June 10, 2014, to address the issue of whether all or part of the Application should be dismissed on the basis that the applicant executed a release on October 12, 2012 (the “release”).
7During the preliminary hearing the Tribunal sought submissions on whether the Application ought to be deferred. Both parties opposed the deferral of the Application.
8During the preliminary hearing, I issued an oral ruling deferring the Application. This Interim Decision provides my reasons for that ruling.
Decision
9The 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 Tribunal must 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.
10In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following comments about deferral at paras. 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.
11Some 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.
12Having reviewed the matter I find that there is an overlap with some of the facts and allegations raised in both the Application and the PSA proceeding. In the “Ruling” the Superintendent noted that the parties agree that he has the jurisdiction to interpret and apply the Code in that proceeding. Therefore, there is a risk that if these two concurrent proceedings are allowed to proceed that there may be conflicting decisions and findings of fact.
13Therefore, I find it is most fair, just and expeditious to defer this Application. Further, the Tribunal has deferred Applications in similar circumstances. See Rutt v. Orangeville Police Service, 2011 HRTO 1610.
14With respect to the respondents’ position that the Application should be dismissed for preliminary reasons, including the execution of the release, the Tribunal does not usually address these requests if it determines that it is appropriate to defer. I note in this case that there are a number of other preliminary issues that have been raised which remain outstanding. I find it would not be an efficient use of the Tribunal’s time to deal with only one of these issues and then defer the Application.
15Accordingly, the Application is deferred pending the conclusion of the proceeding pursuant to the Police Services Act. The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.
16I am not seized.
Dated at Toronto, this 10th day of June, 2014.
“Signed by”
Geneviève Debané
Vice-chair