Mustari v. Coseco Insurance Company, 2015 HRTO 696

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosanna Mustari Applicant

-and-

Coseco Insurance Company, Mohammad Reza Nikkhou and Joan Melanie Tucker Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren Date: May 27, 2015 Citation: 2015 HRTO 696 Indexed as: Mustari v. Coseco Insurance Company

WRITTEN SUBMISSIONS

Rosanna Mustari, Applicant Self-Represented

Coseco Insurance Company, Respondent Shawn O’Connor, Counsel

Mohammad Reza Nikkhou, Respondent Todd Burke and Jennifer Katsuno, Counsel

Joan Melanie Tucker, Respondent Nada Nicola-Howorth, Counsel

1By Application filed January 2, 2015, the applicant alleges that the respondents discriminated against her in the delivery of a service on the basis of her disability, family status and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code).

2This Interim Decision considers whether to defer this Application pending completion of proceedings that are concurrently before the Financial Services Commission of Ontario (“FSCO”), the College of Physicians and Surgeons Ontario and the College of Psychologists of Ontario.

3The respondent, Coseco, requested that the Application be deferred pending the completion of arbitration before FSCO. The respondent submits that the issues to be determined by FSCO are same as the issues that are set out in the Application: whether the applicant’s injuries fall within the Minor Injury Guideline; and whether the costs of her treatment plan should have been paid. Coseco submits that is required by law to participate in the FSCO arbitration and that it would be an abuse of process to have the same issues litigated by FSCO and the Tribunal.

4The respondent, Tucker, has requested a deferral of the Application pending the completion of the proceeding of the College of Physicians and Surgeons Ontario.

5The respondent, Nikkhou, has requested a deferral of the Application pending the completion of the proceeding of the College of Psychologists of Ontario.

6The applicant opposes all of the requests to defer. She submits that she requires medical care and that the Application should not be delayed. She also submits that the Colleges have a duty to regulate Ontario’s physicians and psychologists and that this role is different from the role of the Tribunal.

ANALYSIS

7Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. In considering whether to defer an application, the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

Financial Services Commission of Ontario

8The documents filed for the FSCO proceeding indicate that the issues to be determined by FSCO are whether the applicant’s injury falls within the “Minor Injury” category and whether Coseco was correct in denying the applicant’s claim for the cost of her treatment plan. These issues and the remedies appear to be identical to those set out in this Application.

9Further, the underlying events giving rise to both the FSCO proceeding and the Application to the Tribunal are the same. Many of the facts supporting this Application appear, from the materials filed, to be substantially the same as the facts that will be determined by the FSCO.

10Finally, the respondent has indicated that dates for the arbitration will be set at the Pre-Arbitration Hearing which is scheduled for June 15, 2015. Having already attempted mediation at the FSCO and requested arbitration, the parties have put some effort into the FSCO processes.

11It would appear that there is a significant degree of overlap between the facts and issues in this Application and the FSCO arbitration. The FSCO arbitrator and the Tribunal would be engaging in a similar enquiry. If the two proceedings were allowed to proceed concurrently, there is a real risk of inconsistent findings on the same issues.

12For these reasons the Application is deferred.

College of Physicians and Surgeons Ontario and College of Psychologists of Ontario

13Given the Tribunal finds it appropriate to defer this Application pending the conclusion of the FSCO proceeding, it is not necessary to determine whether the Application should also be deferred pending the Colleges proceedings.

14Should a party choose to request that the Application be re-activated after the conclusion of the FSCO proceeding, the issue of whether the Tribunal should order a further deferral pending completion of the Colleges proceedings may be considered at that point.

ORDER

15For the reasons stated above, the Application is deferred pending the conclusion of the FSCO proceeding.

16The Tribunal’s Rule 14 sets out the procedure by which the Application may be brought back on after the conclusion of another proceeding.

17Should a party Request a re-activation of this Application and if the proceedings of the College of Physicians and Surgeons Ontario or the College of Psychologists of Ontario are continuing at the time of the Request to re-activate, the parties may make a Request for a further deferral pending the Colleges proceedings.

18I am not seized of this matter.