Pettit v. Samuel, 2015 HRTO 487

Human Rights Tribunal of Ontario

Between:

Sandi Pettit Applicant

-and-

Corey Samuel Respondent

Interim Decision

Adjudicator: Alison Renton Date: April 17, 2015 Citation: 2015 HRTO 487 Indexed as: Pettit v. Samuel

1This Application alleges discrimination with respect to employment because of sex, including sexual harassment, sexual solicitation or advances, gender identity, marital status and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The respondent has filed a Response in which he states that he has been charged with sexual harassment under the Criminal Code and that the charge remains outstanding. He requests that the Application be deferred until the completion of the criminal proceedings.

3By letter dated April 1, 2015, the Tribunal directed the applicant to file a Reply responding, in particularly, to the respondent's request to defer.

4The applicant filed a Reply requesting that the Tribunal not defer her Application. She submits that she has no control over the criminal charges and how the Crown will decide to proceed. The respondent's actions have had a significant impact on her life and her Application should be handled in the same manner as other applications, despite the criminal charges.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal's Rules of Procedure). The 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.

6However, the Tribunal has generally deferred applications where there is an ongoing proceeding based on overlapping facts and issues. Some factors that have been identified as 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 types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7The Tribunal has deferred a number of applications where criminal charges are laid against a respondent based upon the same allegations as those raised in the application. See, for example, Gutcher v. Welland Retirement Suites, 2014 HRTO 610, Duke v. Toronto (City), 2013 HRTO 413, and Zhong v. Ontario Property Management Group Inc., 2013 HRTO 608.

8As the criminal charges stem from the same facts that form the substance of this Application, there is significant potential for a factual overlap between the two proceedings. This raises the possibility of inconsistent findings of fact if the Application runs concurrently with the criminal proceeding. In these circumstances, deferral is the most fair, just and expeditious way of proceeding with the Application. Accordingly, the Application is deferred pending the conclusion of the criminal proceeding.

9Pursuant to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal's Rules of Procedure and Forms can be found on its website at www.hrto.ca.