Graham (Litigation Guardian of) v. St. Thomas (City), 2015 HRTO 385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samantha Graham as represented by her Litigation Guardian Elizabeth Graham Applicant

-and-

The Corporation of the City of St. Thomas Respondent

-and-

Kristie Morgan Applicant

-and-

The Corporation of the City of St. Thomas Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: March 25, 2015 Citation: 2015 HRTO 385 Indexed as: Graham (Litigation Guardian of) v. St. Thomas (City)

APPEARANCES

Samantha Graham as represented by her Litigation Guardian Elizabeth Graham, Applicant Sharmaine Hall, Counsel

Kristie Morgan, Applicant Sharmaine Hall, Counsel

The Corporation of the City of St. Thomas, Respondent John Sanders, Counsel

1Application 2014-19264-I was filed on November 5, 2014 alleging discrimination with respect to goods, services and facilities because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). Application 2014-19265-1 was also filed on November 5, 2014 and alleges discrimination with respect to goods, services and facilities because of disability, age and association with a person identified by a prohibited ground of discrimination contrary to the Code. Both Applications concern a zoning by-law that Applicant Morgan asserts threatens her adult day care business because of the cost of complying with the by-law or because she may be required to relocate the business. Applicant Graham is one Ms. Morgan’s client who, through her litigation guardian, states that she derives great benefit from Ms. Morgan’s programme, which could be closed at any time due to non-compliance with the by-law in question. The respondent denies any violation of the Code and states that it has and continues to attempt to arrive at a mutually acceptable solution.

2Both applicants and the respondent submitted in their respective Application and Response that the Applications should be consolidated in light of the very similar factual and legal allegations.

3Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together. In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

4On the material filed with the Tribunal thus far, it is clear that the facts underlying these applications are essentially the same. Avoiding repetitive litigation is a compelling public interest and, since all the parties requested consolidation, I find it appropriate to order consolidation of these Applications.

Deferral

5At Question 8 in its Responses to the Applications, the respondent requested deferral of the Applications pending conclusion of Ms. Morgan’s application for amendment of the zoning by-law in question. The Respondent did not make submissions directly supporting the requests to defer in the narratives to its Responses, but did submit that it is considering revision of the impugned by-law, which requires an orderly and well-considered approach. The respondent submitted that should the Tribunal determine that the by-law infringe the Code it should permit the Respondent to affect any necessary changes following an orderly process for municipal by-law revision, consistent with good planning principles.

6The applicants oppose deferral of the Applications. The applicants submit that approval of the Ms. Morgan’s request to amend the by-law would address their requests for a non-monetary remedy, but would not address their requests for monetary and public interest remedies. The applicants submit that consideration of Ms. Morgan’s application to amend the by-law will simply deal with land use planning issues and will not determine whether the impugned by-law violates the Code.

Analysis and Decision

7The 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.

8If approved, Ms. Morgan’s application to amend the impugned by-law would provide both applicant’s with a non-monetary remedy that they have requested, but not the monetary or public interest remedies they seek. It is not clear that the process for reviewing the amendment request would involve presentation of evidence and findings of fact. In any event, the issue to be determined with respondent to Ms. Morgan’s amendment application is whether the by-law should be amended to allow her to operate her business and not whether the by-law violated the Code. Accordingly, there does not appear to a risk of inconsistent decisions on facts or law. There was also no indication of when the amendment application is expected to be concluded.

9The requests to defer are denied.

Order

10The Tribunal orders as follows:

1. Application 2014-19264-I and 2014-19265-I are consolidated; and,

2. The respondent’s requests to defer the Applications are denied.

11The parties have agreed to mediation; therefore, the Tribunal shall schedule the matter for mediation.

12I am not seized.