Dolny v. College of Massage Therapists of Ontario, 2016 HRTO 655

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Collin Dolny

Applicant

-and-

College of Massage Therapists of Ontario

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: May 13, 2016

Citation: 2016 HRTO 655

Indexed as: Dolny v. College of Massage Therapists of Ontario

WRITTEN SUBMISSIONS

College of Massage Therapists of Ontario, Respondent

Andrew Porter, Counsel

1The purpose of this Interim Decision is to deal with the respondent’s request to defer the hearing of the merits of the Application before this Tribunal pending the conclusion of an Application for Judicial Review of a previous Interim Decision before the Divisional Court.

2On February 7, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) with this Tribunal, which alleged that the respondent discriminated against him because of his disability with respect to services, and subjected him to reprisals for claiming his rights under the Code.

3On December 22, 2015, the Tribunal issued an Interim Decision, 2015 HRTO 1724, which denied the respondent’s request to dismiss the Application on a preliminary basis. The respondent had requested that the Application be dismissed on the basis that its substance was appropriately dealt with in another proceeding, and it has no reasonable prospect of success.

4On December 23, 2015, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing of the merits of the Application was scheduled for May 24 and 25, 2016.

5On April 18, 2016, the respondent filed a Request for an Order During Proceedings (“RFOP”), which requested that the hearing be deferred pending the conclusion of an Application for Judicial Review of the Interim Decision, 2015 HRTO 1724, before the Divisional Court. The respondent attached a copy of the Notice that it filed with the Court on April 15, 2016.

6In its written submissions in support of its Request, the respondent stated that the Divisional Court’s decision may require a reconsideration of the Tribunal’s reasons concerning the respondent’s Request for Summary Hearing, may render a hearing on the merits unnecessary, and/or may affect the conduct of any hearing on the merits.

7The applicant has not filed a Response to the RFOP, and the time for doing so has now passed.

8The Tribunal’s approach in dealing with a request to defer the hearing of the merits of an Application before this Tribunal pending the conclusion of an Application for Judicial Review of an Interim Decision before the Divisional Court was set out in K.M. v. Kodama, 2014 HRTO 1074 at paras. 16-23:

The 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 of the Tribunal’s Rules of Procedure). The decision whether to defer an application is a matter of discretion, which the Tribunal exercises on the basis of the circumstances of each case.

As the Tribunal has frequently stated, the purpose of deferral is to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

In the circumstances of this case, I am not persuaded that the Application ought to be deferred pending the outcome of the respondent’s judicial review application before the Ontario Divisional Court in respect of the Interim Decision.

Leaving aside whether a judicial review application can truly be considered to be a “concurrent proceeding” with respect to the facts and issues raised in the Application, in my view, deferral is not appropriate in this case because it would not serve the underlying purpose of deferral, namely the avoidance of inconsistent decisions on facts or law.

In the case at hand, there is no risk that proceeding to the hearing of the merits will result in the Tribunal issuing a decision that is inconsistent with whatever decision may be made by the Divisional Court. This is because the Tribunal has already rendered its decision on the issues the respondent seeks to have addressed by the Court. Accordingly, deferring the Application would serve no purpose. There is no basis to defer an application where the Tribunal has already issued its decision on the matter being addressed elsewhere.

In addition, although the respondent has framed his request as a request to defer, and not as a request for a stay of proceedings, some of the principles governing whether an application ought to be stayed pending a judicial review application are relevant to the issue at hand, and weigh against deferring the Application pending judicial review of the Interim Decision. The Tribunal’s decision in Washington v. Toronto Police Services Board, 2009 HRTO 640, at paras. 8 to 11, is particularly instructive:

It is a well-established principle of judicial review that “delays or interruptions occasioned by judicial review proceedings should be avoided except in ‘exceptional circumstances’”: King, supra at para. 26. As the Divisional Court explained in Ontario College of Art v. Ontario (Human Rights Commission), 1993 CanLII 3430:

For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.

The Divisional Court has emphasized that this approach should be applied by adjudicators in considering requests like this one, holding that a labour arbitrator erred in adjourning an arbitration pending a decision on a judicial review of an interim decision: Placer Dome Inc. v. United Steelworkers of America, Local 8533, [1994] O.J. No. 522.

These principles, in my view, are supported and strengthened by the provisions of the new Code, and, in determining requests for stays pending judicial review, the Tribunal should take the legislature’s guidance into account. Section 41 permits the Tribunal to “adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it” [emphasis added]. Decisions of the Tribunal are final and not subject to appeal or to being set aside in a judicial review unless the decision is patently unreasonable: s. 45.8.

Most important, s. 43(8) of the Code specifically addresses the issue of procedural rulings, providing as follows:

Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter.

The requirement for a procedural ruling to affect the “final disposition” of the matter in order to be set aside by a Court is, in my view, a particularly strong signal that the Tribunal should be reluctant to fragment or interrupt its proceedings as a result of an application for Judicial Review, absent exceptional circumstances.

In my view, some of the principles articulated above apply with equal force to requests that an application to the Tribunal be deferred pending judicial review of an interim decision. The Ontario courts and this Tribunal have held that proceedings before administrative tribunals, such as this one, should not be delayed or interrupted by judicial review proceedings except in exceptional circumstances. In the case at hand, deferring the Application pending the outcome of the respondent’s judicial review application would certainly interrupt the proceedings and delay the hearing of the Application on its merits and there are no exceptional circumstances to justify it. This is further reason not to grant the request to defer.

The Divisional Court’s prescription against “fragmented proceedings” also speaks against deferral of the Application pending the outcome of a judicial review application in respect of an interim decision. In the Ontario College of Art case, cited in Washington, the Divisional Court expressed a clear preference for having proceedings run their course before administrative tribunals, such as this one, before having the Court determine legal issues arising from the proceeding. In my view, it would be inconsistent with the Divisional Court’s direction to grant the request for deferral and delay the hearing of the Application on its merits.

9I see no reason to deviate from this approach. Therefore, the respondent’s request to defer the hearing of the merits of the Application is denied.

10I have concerns that the applicant did not file a Response to the respondent’s RFOP. Therefore by no later than 5:00 p.m. on Tuesday, May 17, 2016, the applicant shall file an email or letter with the Tribunal’s Registrar, and deliver a copy to the respondent, which confirms that he will be attending the hearing on May 24 and 25, 2016. If the applicant fails to follow this direction, his Application may be dismissed as abandoned.

11The Tribunal therefore makes the following orders and directions:

1. The respondent’s request that the hearing of the merits of the Application before this Tribunal be deferred pending the conclusion of an Application for Judicial Review of the Interim Decision, 2015 HRTO 1724, before the Divisional Court is denied.

2. The hearing of the merits of the Application will proceed on May 24 and 25, 2016.

3. By no later than 5:00 p.m. on Tuesday, May 17, 2016, the applicant shall file an email or letter with the Tribunal’s Registrar, and deliver a copy to the respondent, which confirms that he will be attending the hearing on May 24 and 25, 2016. If the applicant fails to follow this direction, his Application may be dismissed as abandoned.