Human Rights Tribunal of Ontario
B E T W E E N:
Brad Finucan
Applicant
-and-
The Regional Municipality of Waterloo Police Services Board and Acclaim Ability Management Inc.
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Finucan v. Waterloo Police Services Board
APPEARANCES
Brad Finucan, Applicant
Self-represented
The Regional Municipality of Waterloo Police Services Board, Respondent
Donald Jarvis, Counsel
Acclaim Ability Management Inc., Respondent
Thomas Gorsky, Counsel
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability.
Background
2The applicant alleges a lengthy history of discrimination in employment by the respondent Police Services Board (the "Board") related to the applicant's mental health. The Board's actions culminated in criminal charges against the applicant, to some of which the applicant pleaded guilty, and charges of misconduct under the Police Services Act, R.S.O. 1990, c. P.15 ("PSA"). This Interim Decision addresses the Board's request to defer the Application pending the conclusion of the PSA proceeding.
Request to Defer
3The Board submitted that the Application includes allegations that the Board conducted the investigation of the criminal and PSA matters involving the applicant in a discriminatory manner. The Board submitted that a Notice of Hearing has been issued in the PSA matter and that such a hearing is subject to the Statutory Powers Procedure Act. The Board further submitted that the applicant is entitled to raise Code issues as a substantive defence and/or with respect to penalties, if any. The Board submitted that the PSA proceedings concern many of the same factual allegations as this Application.
4The applicant submitted that the Application should not be deferred. The Applicant submitted that the Board has already caused significant delays in both the criminal and PSA proceedings. The applicant submitted that the Board has done so to continue its persecution of him and to provide an opportunity to lay additional charges against him. In that regard the applicant provided lengthy submissions in which he set out additional facts, which he also seeks to add to the Application, regarding the parties conduct in the criminal a PSA proceedings.
Analysis and Decision
5The 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.
6In this case, the applicant alleges that the Board's discriminatory actions led to charges against him under the PSA. Accordingly, there is significant overlap in the factual issues to be determined before this Tribunal and in the PSA hearing. It also appears that the applicant is entitled to raise Code issues in the PSA hearing, which also creates potential overlap with respect to legal issues. The PSA matter is at a more advanced stage as a notice of hearing has been issued. In these circumstances, I find that it is appropriate to defer this Application pending the conclusion of the PSA matter.
7The 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 grievance process.
8I am not seized.
Dated at Toronto, this 7th day of September, 2017.
"Signed by"
Douglas Sanderson
Vice-chair