Boyer v. Sault Area Hospital, 2015 HRTO 98

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Boyer

Applicant

-and-

Sault Area Hospital and Dolores Cowan

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: January 22, 2015

Citation: 2015 HRTO 98

Indexed as: Boyer v. Sault Area Hospital

WRITTEN SUBMISSIONS

Karen Boyer, Applicant

Kingsley Laurin, Counsel

Sault Area Hospital and Dolores Cowan, Respondents

Laura Cassiani, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether the Tribunal should defer consideration of this Application pending the resolution of a complaint filed by the applicant to the College of Nurses of Ontario (“College”) and/or the outcome of an application for judicial review filed in another proceeding.

2In her Application, the applicant alleged that the respondents discriminated against her because of race, colour, ancestry and disability, and reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). Among other things, the applicant alleged that the respondents failed to provide her with appropriate medical care because of her identity as a First Nations woman. The respondents deny any discrimination.

3In their Response, the respondents requested that the Tribunal defer consideration of the Application pending the conclusion of a complaint that the applicant has filed with the College against the personal respondent to this Application. In her complaint, the applicant raised alleged events involving the personal respondent which are also raised in the Application before the Tribunal. On November 19, 2014, the College advised the parties that it would address the matter by way of an investigation. The respondents submit that the Tribunal should defer consideration of the Application because the College process is at an advanced stage and that it will deal with the same allegations with respect to the personal respondent as those set out in the Application. The respondents submit that there is a significant risk of inconsistent results should the two proceedings proceed simultaneously. Finally, the respondents submit that it would be unfair to them if the Tribunal does not defer consideration of the Application due to the resources and time involved in proceeding in two forums simultaneously

4The respondents also requested that the Tribunal defer consideration of the Application pending a final decision in a judicial review of the Tribunal’s decision in K.M. v. Kodama, 2014 HRTO 526 (“Kodama”).

Deferral of application

5The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties: s. 45 of the Code. 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. 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 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.

6On balance, I find that deferral is not appropriate in this case.

7While it is clear that there is an overlap in the facts in the Application and the complaint process underway at the College, other factors suggest that deferral is not appropriate. At this time, the complaint at the College is only at the initial stage of being investigated. It may or may not proceed further to a hearing. Also, the legal issues raised in the complaints are different. The College complaint is a public interest complaint alleging a breach of professional standards of practice. It does not raise any allegations of discrimination and therefore will not provide the applicant any remedy for any alleged discrimination. Finally, although there is an overlap in the facts as between the College complaint and the Application, this overlap only relates to the alleged facts relating to the applicant’s interactions with the personal respondent. The College complaint does not address the alleged facts relating to the organizational respondent which form a substantial part of the Application. For these reasons, I do not find it appropriate to defer consideration of this Application pending the outcome of the College process. If, during the consideration of this Application, the College makes a decision with respect to the complaint, the Tribunal can determine what effect, if any, to give to such a decision in determining the issues raised in this Application.

8I also find that deferral of this Application pending the outcome of an application for judicial review in Kodama is not appropriate. To begin, Kodama is a case involving different parties than the ones involved in this Application. Among other things, the Tribunal’s decision in Kodama deals with the Application of s. 45.1 of the Code. That section provides the Tribunal with a discretion to dismiss an Application if another proceeding has appropriately dealt with the substance of the Application. The respondents have provided no reasons for its request to defer this Application pending the outcome of the Kodama judicial review other than stating that the decision has implications for the parties to this Application.

9Parties in several cases filed similar requests for the deferral of applications pending the outcome of a judicial review application in Her Majesty the Queen in Right of Ontario v. de Lottinville. Like the Kodama case, the de Lottinville judicial review also addressed the interpretation and application of s. 45.1 of the Code. The Tribunal consistently denied requests for deferral pending the judicial review decision in de Lottinville. See Claybourn v. Toronto Police Service, 2014 HRTO 386; Permaul v. Toronto Police Services Board, 2014 HRTO 365; Smith v. Toronto Police Services Board, 2014 HRTO 366; Lawrence v. Ontario Provincial Police, 2014 HRTO 364; Ferguson v. Toronto Police Services Board, 2014 HRTO 369; and Khan v. Toronto Police Services Board, 2014 HRTO 672.

10I find the reasoning in these decisions is applicable in the circumstances of this case. In their Response, the respondents reserved the right to request that the Tribunal dismiss this Application under s. 45.1 of the Code. Such a request could only reasonably be made after the College deals with the applicant’s complaint. It is not at all clear if, when and how the College will deal with the applicant’s complaint since it is presently only at the investigation stage. As a result, I find the respondents’ concerns about the impact of the judicial review in Kodama highly speculative to say the least. Not only is Kodama a separate proceeding involving different parties but it also concerns an issue that has not yet been raised, and may never be raised, in this proceeding.

11I also find it significant that a deferral of this Application pending a final decision relating to the Kodama judicial review, could effectively mean deferring consideration of the Application until the Supreme Court of Canada renders a decision in that case or until all rights of appeal to higher courts are exhausted. In my view, such a delay would be inconsistent with the Tribunal’s mandate to provide fair, just and expeditious resolution of Application, especially in light of the speculative nature of the respondents’ deferral request.

12For all these reasons, I do not find it appropriate to defer consideration of this Application pending the final outcome of the Kodama judicial review.

Order

13For the reasons set out above, the respondents’ request for deferral is denied.

14Since the parties have agreed to attempt mediation, the next step in this Application is for the Tribunal’s Registrar to schedule a mediation.