Ermalinda Nogueira v. Catholic Children's Aid Society of Toronto, 2008 HRTO 298

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ermalinda Nogueira Applicant

-and-

Catholic Children’s Aid Society of Toronto Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim Date: November 24, 2008 Citation: 2008 HRTO 298 Indexed as: Nogueira v. Catholic Children’s Aid Society (Toronto)

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

1This is an Application filed September 25, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Mediation has not been scheduled due to scheduling difficulties.

2On November 14, 2008 the respondent filed its Response and requested that the Application be dismissed or deferred on the basis that the applicant has commenced a civil action based on the same fact situation which forms the subject matter of the Application.

3Section 53(4) of the Code required the Tribunal to establish rules to determine section 53(3) applications expeditiously. In accordance with this statutory mandate, the Tribunal developed a process whereby it was expected that the first step in most section 53(3) applications would be mediation (Rule 8), followed by disclosure and the filing of further statements of facts, if required, followed by a case resolution conference to determine the merits of the application (Rule 9).

4However, the Tribunal retains the discretion to control its own process and to hear requests to dismiss an application at any stage of its proceedings if it is fair, just and expeditious in the circumstances. The Rules confirm this: Rule 4.1 provides that the Tribunal may exercise any of its powers under these Rules on its own initiative; Rule 4.3(c) provides that the Tribunal may vary the application of these Rules at any time on its own initiative; Rule 4.3(d) provides that the Tribunal may determine and direct the order in which issues in a proceeding will be considered and determined; and Rule 4.3(m) provides that the Tribunal may take any other action that the Tribunal determines is appropriate.

5In my view, the circumstances of this case justify the exercise of my discretion to hear the issues raised by the respondents at this stage of the proceedings and that to proceed in this manner is consistent with a fair, just and highly expeditious process.

6Section 34(11) of the Code provides, in part:

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn…

7Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application.

8As a result, the Tribunal determines that it is appropriate to receive submissions with respect to whether, in the circumstances, this Application is barred by virtue of section 34(11) of the Code, or in the alternative, whether the Application should be deferred. The Tribunal makes the following Orders:

• Within 20 days of the date of this decision, the respondent shall deliver to the applicant and file with the Tribunal submissions on whether this Application is barred by virtue of section 34(11) of the Code or should be deferred under section 45. The respondent should at the same time provide any documents relevant to its position, including the statements of claims of the civil actions;
• Within 20 days of receipt of the respondent’s submissions, the applicant shall deliver to the respondent and file with the Tribunal a response to the respondent’s submissions on the issues identified in the bullet point above. The applicant should at the same time provide any documents relevant to her position; and,
• Within 10 days of receipt of the applicant’s submission, the respondent may deliver and file any reply submissions.

9Upon receipt of the submissions, the Tribunal will advise the parties if oral submissions are required. The Tribunal may decide the issue on the basis of the written submissions.