COURT FILE NO.: CV-11-00442885-0000

DATE: 20121127

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Randi Druzin, Plaintiff

AND

Shaw Media Global Inc., Defendant

BEFORE: E.M. Morgan

COUNSEL:
Andrew J. MacDonald , for the Plaintiff

Sunira Chaudhri , for the Defendant

HEARD: November 23, 2012

ENDORSEMENT

[ 1 ] The Defendant seeks a stay of proceedings based on the fact that a parallel and virtually identical complaint has been brought by the Plaintiff to the Canadian Human Rights Commission (“CHRC”).

[ 2 ] The motion was initially scheduled for May 22, 2012 but was set down for too short a time. It was therefore adjourned, with costs of the day in the amount of $500.00 awarded to the Plaintiff.

[ 3 ] The matter was up again on August 7, 2012. On that day it was assigned to a motion court judge who, it turned out, had a conflict of interest with one of the parties and so recused himself. The motion was therefore rescheduled for November 23, 2012, being the next available date for a motion of this length.

[ 4 ] The parties exchanged affidavit materials and fully briefed the case law dealing with the parallel proceedings issue. In the meantime, however, the CHRC has issued a report indicating that it is in substantial agreement with the Defendant’s point – i.e. that the issues raised in this action and in the Human Rights complaint are so similar that one should await the outcome of the other so that it can be determined at that point if there is anything left to decide. As the CHRC put it at paragraph 49 of its report of November 19, 2012, the Plaintiff’s action herein “may address some, if not all, of the allegations found within her complaint.”

[ 5 ] A review of the case law on proceedings that are at least partially duplicated in the courts and the Human Rights tribunals reveals mixed results. For example, courts have on occasion made it clear that it is possible for an employee to bring a wrongful dismissal claim as well as a Human Rights Code complaint arising out of the same facts. Comparing a wrongful dismissal or tort action to a Human Rights complaint, courts have found that, “[t]he cause of action in the present case is different from the alleged breach of the Code even though both the claim and the complaint allege and rely on much the same facts.” Ross v. IBM Canada , [2004] OJ No 414, at para. 69 (SCJ) .

[ 6 ] On the other hand, courts have also occasionally admonished that, “it is not in the best interests of justice to have a multiplicity of concomitant proceedings with respect to the same subject matter”, and that, “[a] common practice has developed in employment law under which aggrieved parties have tried to place pressure on an employer by initiating multiple proceedings. This practice is clearly inappropriate and an abuse of process.” McKelvey v. D’Ercole , [2003] OJ No 4172, at paras. 18-19 (SCJ) .

[ 7 ] It is worth reviewing this case law even though the motion no longer requires a decision on the merits. Counsel for the Plaintiff contends that the position of the Defendant was always hopeless on the current state of the law, and that the Plaintiff therefore deserves to be paid costs on a substantial indemnity basis. As I read the cases, however, the Defendant cannot be said to have brought a motion that was inevitably doomed to failure. Indeed, the CHRC’s recommendation that its own proceeding be adjourned pending the outcome of the present action suggests that the Defendant was at least correct on the facts.

[ 8 ] As indicated above, the CHRC report has now recommended holding the Human Rights complaint in abeyance, thereby eliminating the basis for the present motion. However, the cases show that this was never a futile motion and is thus not a case for substantial indemnity costs against the Defendant.

[ 9 ] The Plaintiff also complains that the Defendant in effect tried its luck in both forums by seeking a stay of this action as well as a dismissal or stay of the Human Rights complaint. However, it does not seem to lie with the Plaintiff to put that argument forward. After all, bringing very similar actions in two different forums is precisely what the Plaintiff herself appears to have done. There is nothing inherently wrong with this tactic, but what is good for plaintiffs is equally good for defendants.

[ 10 ] The Defendant wishes to adjourn the motion so that it can be in a position to bring it back if the CHRC at some point re-opens the complaint. It seems to me that it is more appropriate to dismiss the motion without prejudice to its being brought back when and if the Defendant deems it desirable to do so. The court’s administration would be unduly burdened if motions were permitted to remain adjourned indefinitely. In order to allow the parties to more efficiently conduct the litigation, neither party need re-create their materials should the motion be brought back at a later stage. It will be sufficient to re-file the existing motion materials with a new Notice of Motion setting out the new return date (as well as any supplementary materials that either party deems necessary at the time).

[ 11 ] The motion is dismissed without prejudice to its being brought back at a later time.

[ 12 ] Addressing costs of the motion, Plaintiff’s counsel argues that he has had to attend at court on three separate occasions only to now be told that circumstances have changed and that the Defendant is not pursuing the motion on its merits. While it is true that this is the third appearance for the parties, that does not necessarily lead to an increased costs award. Costs have already been awarded for the first appearance, and the adjournment at the second appearance was due to the judge’s own conflict and was not the fault of either party.

[ 13 ] The Plaintiff is entitled to the costs of this last appearance given that it has fully defended a motion that the Defendant is now not pursing. I have reviewed the Plaintiff’s Bill of Costs, and have attempted to extrapolate the costs of attendance at and preparation for the last appearance together with the costs of preparing the motion record itself, all on a partial indemnity basis. The Plaintiff shall have costs in the amount of $3,500.00, inclusive of disbursements and HST, payable by the Defendant within 30 days of the date of the hearing of this motion.

Morgan J.

Date: November 27, 2012