HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kimberly Whitman
Applicant
-and-
Simcoe Muskoka Family Connexions and Gaby Pechmann
Respondents
A N D B E T W E E N:
Hayden Gittens
Applicant
-and-
Simcoe Muskoka Family Connexions and Gaby Pechmann
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Whitman v. Simcoe Muskoka Family Connexions
WRITTEN SUBMISSIONS
Kimberly Whitman and Hayden Gittens, Applicant
No one appearing
Simcoe Muskoka Family Connexions and Gaby Pechmann, Respondents
Jonathan de Vries, Counsel
1Both applicants filed Applications against the respondents under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, with respect to services on the grounds of race, colour, place of origin, citizenship, family status, marital status, and association with another person. The respondents have filed Responses.
2In a Case Assessment Direction dated December 1, 2016, the Tribunal directed the parties to file submissions addressing the issues of whether the Applications should be consolidated and whether the Application should be deferred pending the resolution of related criminal proceedings against the applicants. The respondents filed submissions. The applicants did not file submissions and the deadline, December 12, 2016, has passed.
3The respondents made the following submissions. The Applications arise out the same event, i.e., a joint Children’s Aid Society/police investigation of the applicants. The Applications are essential identical and there will be overlapping evidence and information, since the applicants were common law partners at the times material to the Applications. The responses are also virtually identical, varying only regarding the name of the applicant. Accordingly, the witnesses would be the same for both Applications and consolidation would avoid repetitive evidence and the risk of inconsistent results.
4Regarding deferral, the applicants have been charged criminally with respect to matters pertaining to the Applications, but the respondents have no knowledge of the status of the criminal proceedings. The respondents confirm that they intend to cross-examine the applicants regarding their actions that relate to the criminal charges laid against them. The respondents do not oppose deferral should the applicant’s wish to protect their right to remain silent in the criminal proceedings.
Consolidation
5Rule 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.
6As the respondents noted these Applications are based on the same facts and are essentially identical, as are the Responses. Processing these Applications separately would result in unnecessary administrative effort, and, more importantly, repetitive litigation. Avoiding repetitive litigation is a compelling public interest and I find it appropriate to order consolidation of these Applications.
Consolidation
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.
8In this case, it appears that criminal charges have been laid against the applicants in respect of their behaviour that was the basis for the respondents’ actions that are the subject of these Applications. Consequently, it appears that there is significant overlap in facts and issues between the Applications and the criminal matters, which raises the possibility of inconsistent decisions. In these circumstances, I find that it is appropriate to defer the Applications pending the conclusion of the related criminal proceedings.
9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the criminal proceedings.
Order
10The Tribunal orders as follows:
Applications 2016-25348-I and 2016-25349-I are consolidated; and,
Applications 2016-25348-I and 2016-25349-I are deferred pending the conclusion of the related criminal proceedings.
11I am not seized.
Dated at Toronto, this 22nd day of December, 2016.
“Signed By”
Douglas Sanderson
Vice-chair