Campbell v. Toronto Dist. School Board (No. 1)

HR-1252-07

2008-09-02

2008 HRTO 62

Ontario Human Rights Tribunal

CHRR Doc. 08-540

Leslie Campbell by his Litigation Guardian Jacqueline Lewis-Campbell Complainant

and

Ontario Human Rights Commission Commission

v.

Toronto District School Board Respondent

Date of Decision: September 2, 2008

Before: Human Rights Tribunal of Ontario, Sherry Liang

File No.: HR-1252-07

Appearances by:

Sharon Ffolkes-Abrahams, Counsel for the Commission

Brenda Bowlby and Kate Waters, Counsel for the Respondent

RES JUDICATA AND ESTOPPEL — prior avenues of appeal — prior education tribunal proceeding — issue estoppel — parties to proceedings and complaints must both be the same — test for res judicata and estoppel — PROCEDURE — adjudicating issue dealt with in prior proceeding as abuse of process

COMPLAINTS — substance of complaint dealt with in another proceeding — EDUCATION — purpose of special education programs — ADMINISTRATIVE TRIBUNALS — court of competent jurisdiction to rule on contravention of human rights legislation — INTERPRETATION OF STATUTES — definition of "proceeding"

Summary: The Human Rights Tribunal of Ontario dismissed parts of a complaint against the Toronto District School Board, which was filed on behalf of Leslie Campbell. Leslie Campbell has autism spectrum disorder and a developmental disability. His mother alleged that he was discriminated against by the Board because his disabilities had not been adequately accommodated.

Leslie Campbell was placed in a special education class in 2004. His mother alleged that he should have been in a regular class with supports, and that his education needs were not being met. The decision to place him in a special education class was reviewed and confirmed by the Special Education Tribunal ("SET"), which operates under the terms of the Education Act.

At issue here is whether the Tribunal should proceed to hear the human rights complaint. The School Board claimed that issue estoppel should apply and that the Tribunal should not deal with the complaint because the same issues had already been heard and decided. The Board also argued that it would be an abuse of process to proceed, and that the Tribunal should dismiss the complaint under s. 45.1 of the Human Rights Code. Section 45.1 permits the Human Rights Tribunal to dismiss a complaint, in whole or in part, if the substance of the complaint has been dealt with in another proceeding.

The Tribunal found that issue estoppel did not apply here. The parties were not the same, since in the human rights complaint the Human Rights Commission was involved.

However, the Tribunal found that the doctrine of abuse of process was pertinent. Would hearing Leslie Campbell's complaint amount to permitting re-litigation of issues already decided?

The central purpose of the statutory scheme for special education is the accommodation of children with special needs, including those with disabilities. The human rights complaint raised facts and issues that were the subject of findings by the SET. Further, the general question before the SET was the same as that before the Human Rights Tribunal: what accommodations were required in order for the complainant to have access to education services. The SET considered the characteristics of Leslie Campbell and decided, based on the standard of the "best interests of the child", that placement in a special education class with specific supports would be most beneficial. Given this, the Human Rights Tribunal decided that it would not be fair to permit the re-litigation of issues that had been determined by the SET. It would violate principles of judicial economy, consistency, and finality.

Regarding s. 45.1, the Human Rights Tribunal concluded that the SET proceeding appropriately dealt with some of the matters in dispute, and it dismissed those portions of the complaint that had already been decided by the SET.

CASES CITED

Angle v. M.N.R., 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248: 27

Anonuevo v. General Motors of Canada Ltd. (No. 3) (1998), 1998 CanLII 29850 (ON HRT), 32 C.H.R.R. D/322 (Ont. Bd.Inq.): 36

Blencoe v. British Columbia (Human Rights Comm.), 2000 SCC 44, [2000] 2 S.C.R. 307, 38 C.H.R.R. D/153, 2000 SCC 44: 36

C. v. Toronto Dist. School Board (Oct. 2, 2006), (Ont. S.E.T.) [unreported]: 5

Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44: 20, 31

Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241,1997 CanLII 366: 13, 43, 55

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 21234 (ON CA), 41 C.H.R.R. D/349 (Ont. C.A.): 27

Heintz v. Christian Horizons (2008), 63 C.H.R.R. D/12, 2008 HRTO 22: 27

I. v. Toronto Dist. School Board (Nov. 17, 2005), (Ont. S.E.T.) [unreported]: 50

Lanark, Leeds and Grenville County Roman Catholic Separate School Board v. Ontario (Human Rights Comm.) (1987), 1987 CanLII 4040 (ON HCJ), 60 O.R. (2d) 441, 8 C.H.R.R. D/4235 (Div.Ct): 20

Mohl v. University of British Columbia (2006), 2006 BCCA 70, 265 D.L.R. (4th) 109 (B.C.C.A.): 20

O'Connor v. Canadian National Railway Co. (2006), CHRR Doc. 06-241, 2006 CHRT 5: 20

Ontario v. O.P.S.E.U., [2003] 3 S.C.R. 149, 232 D.L.R. (4th) 443, 2003 SCC 64: 20

Parry Sound (Dist.) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, 47 C.H.R.R. D/182, 2003 SCC 42: 26

R. v. Conway, [1989] 1 S.C.R. 1659, 1989 CanLII 66: 36

Rush v. Richmond (City) (2008), CHRR Doc. 08-090, 2008 BCHRT 62: 20

Sigrist v. London Dist. Catholic School Board (No. 1) (2008), CHRR Doc. 08-104, 2008 HRTO 14: 44

Snow v. Honda of Canada Manufacturing (2007), 61 C.H.R.R. D/417, 2007 HRTO 45: 20, 40

Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63: 20, 37, 39

Villella v. Vancouver (City) (No. 3) (2005), CHRR Doc. 05-509, 2005 BCHRT 405: 20, 68

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.),1982, c. 11, s. 15(1): 51

British Columbia

Human Rights Code, R.S.B.C. 1996, c. 210, s. 27(1)(f): 24, 63

Ontario

Education Act, R.S.O. 1990, c. E.2

s. 1(1): 44

s. 8(3): 44

s. 15(1): 13

s. 57(3): 50

s. 57(4): 55

O.Reg. 181/98: 44

R.R.O. 1990, Reg. 306: 44

Human Rights Code, R.S.O. 1990, c. H.19

s. 1: 4

s. 9: 4

s. 45.1: 8, 15, 18, 24, 29, 35, 60, 65, 69, 71

s. 55(2): 61

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22: 19

AUTHORITIES CITED

Lange, Donald J., The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000): 38

INTRODUCTION

1In this complaint, a student with autism spectrum disorder alleges that the Toronto District School Board (the "Board") discriminated against him by failing to accommodate his disability in providing education services to him.

2The student's special education placement was the subject of a hearing under the Education Act, R.S.O. 1990, c. E.2, before the Special Education Tribunal (SET), resulting in a decision from that tribunal. The Board takes the position that some of the issues raised in this complaint under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") have already been dealt with by the SET. The Board requests that this Tribunal dismiss the portions of the complaint which it states have been determined by the SET.

3This interim decision provides my ruling on the Board's request.

BACKGROUND

4The complainant is represented in this complaint by his mother, referred to as his litigation guardian. In the complaint filed on August 24, 2004, he alleges that the Board infringed his right to equal treatment with respect to education services because of his disability, contrary to ss. 1 and 9 of the Code. He alleges that the Board failed to accommodate his disability, providing as examples:

· the failure to provide a "competent and continuous educational assistant";

· the failure to provide augmentative communication;

· the failure to provide an academic program;

· the failure to provide a full day at school.

5Previous to the complaint, on May 3, 2004, an Independent Placement Review Committee ("IPRC") with the Board identified the complainant as an exceptional student, with both autism and developmental disability. Its decision was to place the complainant in a special education class. The complainant's mother initiated an appeal of this decision through the process established by the Education Act, leading to a hearing before the SET which took place over six days in May, June and July 2006. The SET issued its order on September 5, 2006, confirming the placement in a self-contained special education class, and directing specific measures to be included as part of the placement (Ms. C. v. Toronto District School Board, unreported decision of the Special Education Tribunal, October 2, 2006).

6In May 2007, the Ontario Human Rights Commission (the "Commission") referred the complaint under the Code for a hearing before the Tribunal. Pleadings were then exchanged between the Commission and the respondent. The complainant did not file pleadings, adopting the position of the Commission. The Commission's pleadings expanded on the facts referred to in the complaint, adding additional matters said to be concerns of the complainant's mother, examples of inappropriate accommodation, or failures by the Board.

7The Board has objected to some of the allegations made in the Commission's pleadings, stating that they either raise issues or contradict findings of fact determined by the SET. The Board takes the position that the Commission and the complainant are precluded from raising those issues, based on the principles of issue estoppel and/or abuse of process. The parties agreed to have the Tribunal determine the Board's objection as a preliminary matter. The Commission and the respondent filed written outlines of their positions and then made oral submissions at a hearing before me. The complainant adopted the written and oral submissions of the Commission.

8Following the hearing, by letter dated July 7, 2008, the Tribunal drew the parties' attention to the following provision of the new Part IV of the Code, which became effective on June 30, 2008, and requested submissions on the effect of this provision, if any, on the issues before it:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

9The Board and the Commission filed written submissions on the matters raised by the Tribunal. The complainant did not file submissions.

THE PLEADINGS AT ISSUE

10The allegations or issues in the pleadings that are said to raise matters already determined by the SET are:

· that Picture Exchange Communication System ("PECS") was not used throughout the complainant's school day;

· that the Board failed to implement recommendations of the Comprehensive Rehabilitation and Mental Health Services ("COTA");

· that the complainant was given no academic program or no adequate academic program;

· that the failure to provide augmentative communication hampered the complainant's academic gains;

· that the complainant was never taught Grade 2,3,4,5 curriculum as his grade level expectation was pre-kindergarten;

· the complainant's placement in a special education class instead of a regular classroom with his peers;

· the nature of the complainant's exceptionalities.

POSITION OF THE BOARD

11The Board takes the position that the principles of issue estoppel and/or abuse of process are applicable in this case to preclude the Commission and the complainant from raising issues or contradicting findings of fact determined by the SET. If the Tribunal accepts its submissions in this regard, in the Board's position, certain portions of the complaint were not before the SET and will remain to be litigated before the Tribunal.

12Counsel for the Board described in some detail in oral argument the statutory scheme under the Education Act governing special education in Ontario. The scheme was described as one designed to ensure the inclusion of children with disabilities in the education system. Where children have disabilities that preclude access to the education system, they will be identified and given services and placements to meet their needs. As put in the Board's written submissions,

[t]he purpose of special education is to provide accommodations to students whose disabilities preclude them from benefiting from the regular curriculum to the same degree as their non-disabled peers. Special education is all about finding the appropriate accommodation for students with disabilities.

13The Board referred the Tribunal to the Supreme Court of Canada decision in Eaton v. Brant County Board of Education, 1997 CanLII 366 ("Eaton"), in which Mr. Justice Sopinka describes special education as a policy which assesses the true characteristics of disabled students with a view to accommodating them, consistent with the purpose of s. 15(1). Part of the special education scheme is the right of parents to appeal the placements of their children when they disagree with the decision of a school board, culminating in a final appeal to the SET. The Board submits that to the extent that Special Education Tribunals are charged with the determination of the accommodations which a student with a disability requires in order to obtain equal treatment in the provision of education services, the SET in this case decided exactly what the Commission is now asking the Tribunal to decide. The Board also relies on the Eaton case insofar as it gave judicial recognition to the role of the SET as a specialized and expert tribunal within the scheme of special education.

14The Board relies on the legal doctrines of issue estoppel and abuse of process. The Board submits that issue estoppel applies to the complainant, and that as between the complainant and the Board the findings of the SET are final. By seeking to re-litigate these findings before the Tribunal, the complainant is attempting to turn the human rights process into an appeal from the decisions of the SET. The Board also states that, to the extent the Commission is simply adopting the complainant's positions, it is also precluded from re-litigating those issues. Even if the doctrine of issue estoppel does not strictly apply to the Commission, it would be an abuse of process to permit it to pursue the issues determined by the SET.

15In response to the Tribunal's request for further submissions on the applicability and meaning of s. 45.1 of the new Part IV of the Code, the Board submits that s. 45.1 provides an additional basis on which the Tribunal may decline to deal with certain parts of the complaint before it, as they have already been substantively and appropriately dealt with by the SET. Those aspects of the complaint may and should be dismissed. The Board asserts that the purpose of s. 45.1 is to avoid the expense and cost of duplicating proceedings which have already dealt with an issue raised by a complainant. It is also intended to avoid the injustice of requiring a respondent to put the same case forward again, where the point has already been determined once by an adjudicator.

16The Board states that the discretion accorded to the Tribunal to dismiss all or part of an application is less constrained than the common law discretion to deal with issue estoppel and abuse of process insofar as the criteria for the application of those doctrines are replaced by just two criteria:

· was there another proceeding?

· if so, did it appropriately deal with the substance of the application?

17On the meaning of these criteria, the Board submits that a "proceeding" would clearly include a hearing held by a court or another statutory tribunal, and should include any formal legal proceeding in which disputes are disposed of in a manner which ensures that due process is accorded to all parties, consistent with the requirements of Canadian law. In order for the "substance of the application" to have been "dealt with", the factual underpinnings of the application before the Tribunal must have been considered, in part or in whole, by another adjudicator who also considered the same or similar issues arising out of those facts such that resolution reached by the other adjudicator effectively determined all or some of the issues in the application before the Tribunal.

18The Board also submits that given the purpose of s. 45.1, it is clear that it does not require the Tribunal to rehear the matter that was dealt with in the other proceeding in order to determine if the matter was correctly decided. It does not authorize the Tribunal to conduct judicial reviews. What is required is that the Tribunal satisfy itself that the other proceeding dealt with the same fact base or circumstances and in doing so made decisions on essentially the same issues as are before the Tribunal.

19The Board submits that s. 45.1 is applicable to all of the issues identified by it as having been the subject of a finding by the SET. The SET hearing is the type of "proceeding" contemplated by s. 45.1. The substance of the matters before the SET was the very issue before this Tribunal — a determination of the accommodations required by the complainant in order to provide him with equal access to education. Given that the SET hearing was conducted under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA") and there is no allegation that it acted outside its jurisdiction or improperly in any way, there is no basis to suggest that it did not deal appropriately with the matters before it.

20Among the cases relied on by the Board are: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 ("Danyluk"); Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 ("CUPE"); Ontario v. O.P.S.E.U. (2003), 2003 SCC 64, 232 D.L.R. (4th) 443 (S.C.C.); Mohl v. University of British Columbia (2006), 2006 BCCA 70, 265 D.L.R. (4th) 109 (B.C.C.A.); O'Connor v. Canadian National Railway, 2006 CHRT 5 [CHRR Doc. 06-241]; Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 [reported 61 C.H.R.R. D/417] ("Snow"); Lanark, Leeds and Grenville County Roman Catholic Separate School Board v. Ontario (Human Rights Comm.) (1987), 1987 CanLII 4040 (ON HCJ), 60 O.R. (2d) 441 [ 8 C.H.R.R. D/4235] (Div.Ct); Rush v. City of Richmond, 2008 BCHRT 62 [ CHRR Doc. 08-090]; and Villella v. City of Vancouver (No. 3), 2005 BCHRT 405 [ CHRR Doc. 05-509] ("Villella").

POSITION OF THE COMMISSION

21The Commission disputes that the pre-conditions for the operation of the doctrines of issue estoppel or abuse of process have been met in these circumstances. The Commission states that the preconditions to the operations of issue estoppel are:

· that the same question has been decided;

· that the judicial decision which is said to create the estoppel was final; and

· that the parties to the judicial decision or their privies were the same.

22The Commission submits that the parties before the SET are not the same as those before the Tribunal. Notably, the Commission was not a party to the SET process. The Commission further submits that the issue before the SET is not the same as the central issue in this human rights complaint. At the SET hearing, the issue was whether the placement decision made by the IPRC was appropriate for the student. The issue before this Tribunal will be whether the Board accommodated the student to the point of undue hardship under the Code. It would be an injustice not to allow the complainant to call evidence and the Tribunal to make its own decision with respect to the accommodation required.

23On abuse of process, the Commission submits that the facts of this case do not raise the factors that have weighed in favour of applying that doctrine. Again, the Commission stresses that the SET does not consider whether the Board accommodated the complainant to the point of undue hardship as required by the Code. Under the Education Act, it is submitted, the SET only has the power to either dismiss the appeal or grant any order it considers necessary with respect to the identification or placement of the child. The Tribunal does not have statutory jurisdiction to address any human rights violations that the respondents may have committed or the ability to order public interest remedies. It is said that, although the SET can consider the Code to ensure that its decisions are in line with the Code, it does not appear that the adjudicators in this case considered the Code when making their decision.

24On the relevance of s. 45.1 to this case, the Commission submits that the Tribunal should be guided by the interpretation given to s. 27(1)(f) of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210 as amended, which gives tribunals under that Code similar discretion to dismiss all or part of an application on the basis of a prior proceeding. The Commission referred to several decisions of tribunals under the British Columbia Code, some of which were also cited by the Board in its submissions.

25The Commission submits that, in the case at hand, the SET did not appropriately deal with the substance of part or all of the matters in the complaint before the Tribunal. Ultimately, it made a decision on the placement of the student. Although it also ordered certain supports to be included as part of the placement, the Commission takes the position that those aspects of the SET decision are not binding on the parties.

26The Commission submits that there is no indication that the SET dealt with the human rights issues. The best interest of the child with regard to placement is not synonymous with the principles of accommodation under the Code. Further, a hearing before the SET is unlike a hearing before a board of arbitration that can specifically address human rights issues and unlike the case of Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 [reported 47 C.H.R.R. D/182] where the Supreme Court of Canada held that arbitrators have full jurisdiction to interpret and enforce the substantive provisions of the Human Rights Code.

27Among the cases referred to by the Commission in its submissions are: Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 21234 (ON CA), 41 C.H.R.R. D/349 (Ont. C.A.); Angle v. M.N.R., 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248; Heintz v. Christian Horizons, 2008 HRTO 22 [reported 63 C.H.R.R. D/12], as well as some of the cases cited by the Board.

28The Commission requests that the Tribunal therefore dismiss the Board's request, and hear the complaint in its entirety as the SET has not appropriately dealt with the substance of the matter before the Tribunal.

DECISION

29The legal principles that the parties have addressed come under various guises: issue estoppel, abuse of process, and s. 45.1 of the Code. At the end of the day, whatever the guiding legal framework, the essential question is this: should the Tribunal go forward to hear and determine matters that were also before the SET, and on which the SET made findings?

30Before turning to an examination of the legal principles, it is useful to set out some guiding principles that will inform the following discussion. First, the Code is an important public policy statute, protecting rights which are quasi-constitutional in nature. Those rights would be meaningless without access to a mechanism for their enforcement — the right to pursue a complaint under the Code should therefore not be denied absent a compelling reason. Second, responsibility for the administration of justice and the enforcement of legal rights in Ontario is spread across a panoply of courts and tribunals. Some of these courts and tribunals have overlapping jurisdiction, and many have considerable expertise in particular areas of law. The Tribunal must undertake its own work with an appreciation of its role in the broader scheme of administrative justice, providing leadership in the interpretation and application of the Code while respecting the legitimacy of decision-making by other tribunals within their own mandates.

31Further, both public and private interests require finality in litigation. As expressed by the Supreme Court of Canada in Danyluk (at §18):

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. . . An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

32The coherence of the administration of justice as well as the need for finality in litigation informs another guiding principle here: that the Tribunal does not act as an appellate court from a decision of another tribunal. In common law, this principle has been expressed as the rule against "collateral attack", described by the Supreme Court as another aspect (in addition to res judicata) of the judicial policy favouring finality (Danyluk at § 20—21):

. . . i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it. . .

These rules were initially developed in the context of prior court proceedings. They have since been extended, with some necessary modifications, to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals. In that context the more specific objective is to balance fairness to the parties with the protection of the administrative decision-making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided.

33I now turn to consider the specific issues before me.

Issue Estoppel

34It is not necessary for me to engage in a full discussion of issue estoppel here. It is a doctrine developed by the courts to prevent re-litigation of issues between the same parties. Issue estoppel does not fit easily with the present context, where issues that have been litigated between the complainant's mother and the Board (before the SET) are now being raised in a proceeding involving the complainant, the Board and the Commission.

35In my view, the policy concerns that are raised in this case are addressed more aptly and fully under the principle of abuse of process and s. 45.1 of the Code.

Abuse of Process

36The term "abuse of process" has been applied to a variety of circumstances in which a court or a tribunal has found it unfair to permit proceedings to continue. It may bring proceedings to an end where there has been inordinate delay (see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 [reported 38 C.H.R.R. D/153]), where in a criminal context there has been unfair or oppressive treatment of an accused ( R. v. Conway, 1989 CanLII 66 (S.C.C.)), or based on the cumulative effect of breaches of fairness and delay ( Anonuevo v. General Motors of Canada Ltd. (No. 3) (1998), 1998 CanLII 29850 (ON HRT), 32 C.H.R.R. D/322 (Ont. Bd.Inq.)).

37It can also apply to an attempt to re-litigate a claim, as described by the Supreme Court of Canada in CUPE (at § 37):

. . . Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.

38The Court went on to state that the "policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel", referring to the following excerpt from a legal text (Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham, Ontario: Butterworths, 2000 (at pp. 347—48), cited in CUPE at § 38):

The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts' and the litigants' resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.

39The Supreme Court emphasized that the focus of the abuse of process doctrine is less on the private interests of the parties, and more on the integrity of the adjudicative process. Therefore, the motive of the party seeking to re-litigate an issue is not a decisive factor in the application of the doctrine (see CUPE at § 43—46). This point is worth noting here. There may be various reasons why an individual may seek to conduct litigation of the same or similar issues in different forums, or to challenge a prior adjudicative finding through another proceeding. In the case before me, it is apparent that the complainant's mother is deeply concerned for her son's education and life opportunities. Presented with the challenges of her son's disability, it is perhaps no surprise that she would seek relief wherever she may find an opportunity. To call her endeavour an "abuse of process" is not to conclude that she has acted oppressively or abusively, or that she is driven by malice or bad faith. As I have indicated, abuse of process is a legal doctrine whose focus is the integrity and coherence of the adjudicative process.

40In Snow, the Tribunal canvassed cases in which the Supreme Court's reasoning in the CUPE decision was applied, referring in particular to the decision in Cremasco, and stating (at § 56):

In Cremasco, Tribunal, [reported 2002 CanLII 61852 (CHRT), 45 C.H.R.R. D/410] the Tribunal asked itself the question: "Would it be fair to proceed?" The Tribunal also stated that the public perceives the human rights process as an integral part of the justice system. Therefore, if the reputation of the larger system is to be preserved, one must consider whether, in the view of reasonable and informed but ordinary people, it would be fair to proceed with the complaint, where the issues before the Tribunal have already been heard and determined in a different forum. This decision was upheld by the Federal Court Trial Division: Cremasco, FCTD, [reported 2004 FC 81, 49 C.H.R.R. D/172] and the Federal Court of Appeal: Cremasco, FCA, [ CHRR Doc. 04-654].

41The Tribunal in Snow identified the following as some of the factors that human rights adjudicators have considered in deciding whether it would be an abuse of process to determine issues which have been decided by another decision-maker in another forum:

· the wording of the other statute

· the purpose of the other legislation

· the availability of an appeal in the other proceedings

· the safeguards available to the parties in the other administrative procedure

· the expertise of the decision-maker in the other proceeding

· the circumstances giving rise to prior administrative proceedings

· the issues decided in the other proceedings

· the human rights principles applied in the other proceeding

· whether fresh evidence is available which was not available in the earlier proceeding

· whether the earlier action was tainted by fraud, dishonesty or unfairness of any kind

· any potential injustice.

42Not all of these factors are significant to the case at hand but on balance, I am satisfied that the circumstances before me justify the application of the abuse of process doctrine to preclude the re-litigation of issues and facts already dealt with by the SET. In arriving at this conclusion, I find the following considerations most relevant.

The Purpose of the Statutory Scheme for Special Education

43I find that the statutory scheme for special education has as its central purpose the accommodation of children with special needs, including those with disabilities, so that they are able to receive the benefits of education available to others (see Eaton at § 68). With respect to the provision of education services to children with disabilities, therefore, it has the same goal as the Code. In the words of the Board, "special education is all about finding the appropriate accommodation for students with disabilities".

44The statutory scheme for special education begins with the definition of "exceptional pupil" in the Education Act as one whose "behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee. . . of the board. . . " (s. 1(1)). The Education Act then establishes an obligation on the Minister to ensure that all exceptional children in Ontario have available to them, "appropriate special education programs and special education services". (s. 8(3)). As described in Sigrist v. London District Catholic School Board (No. 1), 2008 HRTO 14 [CHRR Doc. 08-104], the Minister's responsibility in this regard is to provide the regulatory framework within which school boards provide those programs and services (at § 15). Following on this, regulations under the Education Act flesh out the obligations of school boards in the provision of special education programs and services and establish the process for the identification and placement of exceptional students, including the process by which parents may appeal a decision of an Identification Placement and Review Committee (O.Reg. 181/98 (Identification and Placement of Exceptional Pupils); Reg. 306 (Special Education Programs and Services)).

45The appeal process culminates in an appeal to the SET, a specialized tribunal established under the Education Act. In its decisions, the SET has stated that the applicable test in determining the appropriate placement of an exceptional pupil is whether it is in the "best interests of the child". The decision of the Supreme Court in Eaton confirmed that this standard is the appropriate one in seeking to achieve equality in education for an exceptional child (at § 72 and 80):

In its thorough and careful consideration of this matter, the Tribunal sought to determine the placement that would be in the best interests of Emily from the standpoint of receiving the benefits that an education provides. In arriving at the conclusion, the Tribunal considered Emily's special needs and strove to fashion a placement that would accommodate those special needs and enable her to benefit from the services that an educational program offers.

The approach that the Tribunal took is one that is authorized by the general language of s. 8(3) of the Act. I have concluded that the approach conforms with s. 15(1) of the Charter of Rights and Freedoms.

Whether the Same Question has been Decided; Whether Human Rights Principles Were Applied

46Nowhere in either the oral or written submissions have the Commission and the complainant disputed that the complaint raises facts or issues that were the subject of findings by the SET. They do not take issue with the Board's comparison of the facts and issues raised in the Commission's pleadings, and determinations made by the SET. They do not dispute that the complaint before the Tribunal and the hearing before the SET arises out of the same set of facts. As I have set out above, the appeal to the SET and the complaint to the Commission were made following a May 2004 placement decision and proceeded roughly concurrently. It is clear that the central issue in both processes is the appropriateness of the placement. Indeed, in the Commission's pleadings, the central non-monetary remedy sought respecting the complainant is "an order directing that the TDSB provide comprehensive assessment of the complainant by an independent expert to assess the complainant's needs and develop a complete accommodation program for the complainant".

47The position of the Commission on the question of whether the SET addressed the same issues as those before this Tribunal is essentially two-fold: (1) that, to the extent the SET made findings on certain of those issues, they were non-binding and cannot therefore be taken to prevent the Tribunal from considering those same matters and (2) that, in deciding those issues, the SET did not apply a "Code" analysis, requiring a consideration of undue hardship.

48The position of the Commission on (1) above is grounded in its view that a decision about "placement" is restricted to deciding whether an exceptional pupil should be placed in a regular class, or in a special education class. In its submission, the SET is unable to consider the full range of accommodations that may be required. It must pick from the placements as defined by the Board. In contrast, this Tribunal is empowered to consider the full range of a child's needs. Although the Commission does not disagree that the goal of special education is accommodation, it submits that the SET is confined by the terms of the Education Act.

49I am satisfied that the general question before the SET is the same as that before this Tribunal: what accommodations are required in order for the complainant to have access to education services. Further, I am satisfied that the mandate of the SET is not limited to a decision about whether to place a student in a regular class or special education class, but includes a consideration of the programs and services required to achieve appropriate accommodation. In fulfilling this mandate, the SET is making decisions about matters addressed by the Code. Further, on my review of the statutory scheme of special education and decisions of the SET, I see no reason to view its directions as non-binding, insofar as it makes directions about specific programs and services.

50It is true that the Education Act and regulations describe special education appeals in terms of issues of "identification or placement" (see s. 57(3) of that Act). It appears that some years ago, in the relatively early days of this scheme for special education, the SET construed its mandate more restrictively than it does currently. An appeal about "placement" was confined more or less to the issue of whether an exceptional pupil should be placed in a regular class, or in a special education class. Over time, however, decisions of the SET began to examine the services and programs available to an exceptional pupil, and to make orders with respect to the provision of specific services or programs. The SET has stated that (Ms. I. v. Toronto District School Board, unreported decision of the SET, November 17, 2005, p. 22):

It is the view of the Tribunal that appropriate programs and services are interconnected with the issue of placement. Inclusion of students who have special needs into the regular classroom requires that appropriate programming and services be put in place to ensure those needs are met. This is contrasted with a special education placement where the services and programs are built into the placement itself. A regular class placement can only be considered appropriate when the services and the program are identified.

51Whether through a consideration of the special education options, accompanied by specific services and programs, or through a consideration of what services and programs are required in order for a child to be accommodated in a regular class, the SET is engaged in making decisions about appropriate accommodation. Further, its analysis is undertaken applying the standard of the "best interest of the child", which has been found by the Supreme Court to be consistent with the equality rights of special education students under s. 15(1) of the Charter of Rights and Freedoms.

52In the case of this complainant, the hearing before the SET included evidence about many aspects of the complaint now before the Tribunal. A number of the allegations made by the parent at the SET hearing about the Board's failure to provide appropriate services to the complainant are echoed in the complaint before me. The position taken by the parent at the SET hearing was that her child should be placed in a regular classroom with appropriate supports. The Tribunal found that the complainant was non-verbal, with a combined exceptionality of autism and developmental disability which requires some very specific teaching. The Tribunal heard evidence about services and programming available in special education programs and in a regular class. Ultimately, the SET found that, based on the standard of "the best interests of the child", the appropriate placement for the complainant was in a special education class, combined with specific supports.

53In view of the above, I do not agree that the inquiry undertaken by the SET cannot be compared to the type of inquiry the Tribunal will undertake in considering whether the Board has properly accommodated the complainant. I find that the mandate of the SET must be understood as part of the special education scheme in its entirety, whose goal is to provide accommodations to students with special needs to allow them to benefit from education services to the same degree as other students. As part of that scheme, the SET makes determinations of the accommodations required by a student with a disability in order to obtain equal treatment in the provision of education services, consistent with established human rights principles.

54Of what significance is it that the SET did not explicitly address the issue of "undue hardship" in its decision? One answer is that in the circumstances of this case it was simply not relevant. The issue of undue hardship arises as a defence where a respondent submits that it cannot accommodate the needs of an individual. In the circumstances of this case, the parent took the position before the SET that her child should be placed in a regular class, with supporting services or programs. The Board did not take the position that those supports would cause it undue hardship. In considering the appropriate placement for the complainant that would be in his best interests, it was not necessary for the SET to consider the issue of undue hardship.

The Safeguards Available to the Parties in the Other Administrative Procedure; the Characteristics of the SET

55Decisions of the SET are final and binding on the parents and on the school board (s. 57(4) of the Education Act). However, they can be reviewed by the courts. SET processes are covered by the provisions of the Statutory Powers Procedure Act as well as principles of procedural fairness. In the Eaton case, the Divisional Court found that the SET was a specialized tribunal worthy of curial deference given the structure of the legislation, the subject matter and the composition of the tribunal. Although the Court of Appeal came to a different result on the merits, it did not disagree with this characterization of the SET and neither did the Supreme Court of Canada. Decisions of the SET on the "best interests of the child" are therefore made by a specialized tribunal with expertise in the matters before it.

56It is also worth noting that, under the regulations for special education, a placement decision must be reviewed at least once annually. Each review leads to a decision either confirming or changing a placement, which may be appealed.

57There is nothing to suggest that the SET in this case failed to deal fully and fairly with the issues raised and positions taken by the parent, or that its processes were in any way procedurally unfair

58All of the above weighs in favour of giving full effect to the determinations of the SET on the matters now sought to be raised in this complaint.

Conclusion on Abuse of Process

59In my view, having regard to the above, it would not be fair to permit the re-litigation of issues that have been determined by the SET. To apply the words used by the Supreme Court of Canada, allowing the litigation to proceed on those matters would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice. It would improperly place the Tribunal in the position of an appellate court with respect to the decision of an expert tribunal, acting within its jurisdiction as part of a comprehensive scheme for the accommodation of special education students.

SECTION 45.1 OF THE CODE

60Having concluded that it would be an abuse of process for the Tribunal to hear matters that were the subject of findings by the SET, it remains to consider whether s. 45.1 has any effect on the issues.

61In the letter of July 7, 2008, the Tribunal asked the parties to address whether s. 45.1 applies to this complaint. The Board submits that it does apply, insofar as s. 55(2) of the Code states that the new Part IV (including s. 45.1) applies to complaints referred to the Tribunal by the Commission before the effective date. In its submissions, the Commission does not disagree with this.

62In addition to issue estoppel and abuse of process, s. 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have been dealt with in another forum. This provision, along with other parts of the Code, gives expression to a legislative intention to avoid the duplication of proceedings. The meaning to be given to s. 45.1 remains to be developed by this Tribunal, and it is unnecessary to give any definitive opinion on it here. My conclusion for the purposes of this case is that s. 45.1 provides a discretion to the Tribunal which is at least as broad as the doctrines of issue estoppel and abuse of process. On the facts of this case, the bases for my finding that abuse of process applies to prevent the re-litigation of certain issues equally support the application of s. 45.1.

63Both the Board and the Commission submit that some guidance as to the proper interpretation of s. 45.1 can be provided by decisions under the British Columbia Human Rights Code, which contains a similarly-worded provision:

27(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:

(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding.

64The parties also refer to the policy considerations and factors applicable to issue estoppel and abuse of process, as relevant to the meaning to be given to s. 45.1.

65After reviewing the submissions of the parties, the wording of s. 45.1 in the scheme of the Code and the decisions from B.C. to which I was referred, I find it helpful to consider that provision in two parts:

· was there another proceeding?

· if so, did it appropriately deal with the substance of the application?

66The Board submits that, given the purpose of s. 45.1, which is to prevent duplication of litigation, the definition of "proceeding" should include any formal legal proceeding in which disputes are disposed of in a manner which ensures that due process is accorded to all parties, consistent with the requirements of Canadian law. The Commission does not disagree that the SET process constitutes a "proceeding" within the meaning of s. 45.1.

67I agree that, at the very least, a "proceeding" includes an adjudicative process established under a statutory regime. For the reasons I have given in support of the application of the abuse of process principle above, relating to the character and statutory framework of SET decision-making, I am satisfied that the SET appeal was a "proceeding" within the meaning of s. 45.1.

68Did the SET appeal appropriately deal with the substance of the application? On this question, I find the following excerpt from the decision in Villella of assistance (at § 14—19):

On its face, s. 27(1)(f) requires the Tribunal to make a determination as to whether the substance of the complaint was appropriately dealt with. This necessitates some kind of examination of the decision arising out of the other proceeding. The question arises as to the nature of the examination contemplated by s. 27(1)(f).

In considering this question, I have found it helpful to consider the definitions of "substance" and "appropriately". The Concise Oxford Dictionary defines "substance", so far as is relevant to the usage under consideration, as follows:

3. theme, subject, material as opposed to form. . . 4. essential nature. . . ; essence or most important part of anything, pith, purport, real meaning;. . . generally, apart from details. . .

"Appropriate" is defined as follows:

. . . belonging or peculiar (to); suitable or proper (to, for); hence ~ly. . .

These definitions suggest that in considering whether the substance of a complaint has been appropriately dealt with, the Tribunal should consider whether the complaint, in its essence or pith, was dealt with in a manner suitable or proper to that essence or pith. This, in turn, suggests that the appropriate manner of dealing with a complaint may differ depending on the essential nature of the complaint in issue. Further, the Tribunal should be concerned with the substance as opposed to the form of the manner in which the complaint was dealt with, focusing on the substance as opposed to the details of the matter. The question is not, as submitted by Mr. Villella, whether the complaint was decided correctly in the other forum.

69The above suggests to me that the question of whether a matter has been dealt with "in substance" does not turn on technical considerations, nor is it dependent on the kind of criteria applied under legal doctrines such as issue estoppel. Further, a decision about whether a matter has been dealt with "appropriately" does not require this Tribunal to be satisfied that it would have reached the same conclusion as that reached in the other forum. Section 45.1 does not require the Tribunal to act like an appellate court.

70In the Commission's submissions on this part of s. 45.1, it reiterates its position that the appeal to the SET did not deal with the human rights issues raised by this complaint, on the basis of the limited nature of a SET appeal and the absence of a consideration of undue hardship. I have discussed this above, and for the same reasons supporting my finding on abuse of process, I am satisfied that the SET appeal appropriately dealt with the substance of the matters in dispute.

71In conclusion, I find that s. 45.1 provides an additional basis for precluding the Commission and the complainant from re-litigating issues that were the subject of findings by the SET. I therefore dismiss the portions of the complaint raising the matters listed in § 10 of this decision, as found in paras. 6, 9, 10, 11 and 13 of the Commission's pleadings.

72The Registrar is directed to schedule a pre-hearing conference call with the parties. The purpose of this call is to set dates for hearing the outstanding issues, resolve or determine any issue necessary before the hearing, and discuss whether mediation may be appropriate.