Kovaleva v. Pichakchi, 2015 HRTO 681

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rozza Kovaleva

Applicant

-and-

Olga Pichakchi

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 26, 2015

Citation: 2015 HRTO 681

Indexed as: Kovaleva v. Pichakchi

WRITTEN SUBMISSIONS

Rozza Kovaleva, Applicant

Sajjad Najem, Representative

Olga Pichakchi, Respondent

Timothy Duggan, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of a civil claim commenced by the applicant.

2In her Application, the applicant alleged that the respondent harassed and discriminated against her because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The current respondent is a member of her condominium’s board of directors. The applicant has also filed a request to amend her Application to add her condominium corporation and the current president of the condominium’s board of directors as respondents.

3The respondent advised the Tribunal that the applicant has also filed a civil claim against her condominium corporation and the president of its board of directors in small claims court. In her civil claim, she is alleging, among other things, that these defendants defamed her character and harassed her. By Case Assessment Direction dated April 23, 2015, the Tribunal sought the parties’ submissions on whether the Tribunal should defer consideration of the Application pending the conclusion of the applicant’s civil claim.

4The applicant opposed deferral on the basis that her Application and her civil claim raise different legal issues.

Deferral of application

5Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. However the Tribunal has generally deferred applications where there is an ongoing proceeding involving many of the same underlying facts and/or issues.

6Deferral is ordered in order to avoid adjudicative duplication and inconsistent results. As well, it should be noted that the Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights issues. See Tranchemontagne v. Ontario (Direction, Disability Support Program), 2006 SCC 14. Where parties are engaged in a concurrent legal proceeding in which they are raising many of the same issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such circumstances, the Tribunal will generally order the deferral of an application.

7In my view, deferral is appropriate in this case due to the overlap in the factual background to the applicant’s claims in each proceeding. Although the applicant has sought to characterize her claims differently in the Application as compared to her civil claim (discrimination and harassment as opposed to defamation, harassment, breach of trust, etc.), the claims set out in her Application are substantially similar to those raised in the civil claim. Due to this overlap, there is a significant potential for duplication of evidence and inconsistent findings in the two proceedings.

8Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the civil proceeding before the Small Claims Court and any related appeals.

9It should be noted that, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

Order

10For the reasons set out above, this Application is deferred pending the conclusion of the Small Claims Court proceeding in this matter and any related appeals.

11The hearing scheduled for August 4, 2015 is cancelled.