Human Rights Tribunal of Ontario

B E T W E E N:

Gary McHale

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Julian Fantino, Gregory Walton, Scott MacDonell, Luis Mendoza and Sean Stewart

Respondents

AND B E T W E E N:

Mark Vandermaas

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Julian Fantino, Mike Mobbs and Stephen Beasley

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 9, 2009

Citation: 2009 HRTO 1911

Indexed as: McHale v. Ontario (Community Safety and Correctional Services)

[1] These Applications were filed under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") on June 29, 2009. The purpose of this Interim Decision is to determine whether the Applications should be deferred in light of an ongoing civil action.

[2] The applicants filed a complaint with the Ontario Human Rights Commission alleging systemic discrimination against non-Aboriginal Canadians by the respondents in preventing them from putting up flags near the site of the Caledonia protests on December 16, 2006 and January 20, 2007. The applicant McHale's complaint was dated July 18, 2007; the applicant Vandermaas' application was undated.

[3] On June 18, 2007, the applicants filed a civil action against Her Majesty the Queen in Right of Ontario for wrongful arrest in respect of the December 16, 2007 incident described above. The applicant McHale also alleged defamation.

[4] 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.

[5] Although there is a significant factual overlap between the two proceedings, the legal issues are different and the remedies claimed differ. In the civil actions, the claim in respect of the December 16, 2007 is wrongful arrest. In the human rights Applications, the claim is that the applicants were treated more harshly than Aboriginal persons were in similar circumstances. It is not clear from the civil action pleadings whether that allegation will form part of the alleged wrongful arrest.

[6] However, I have a serious concern for the potential for conflicting findings of facts surrounding the December 16, 2007 events and arrests. These form a substantial basis of both proceedings, and in my view, it would inappropriate for two agencies to adjudicate these issues at the same time.

[7] Neither party provided any indication of the status of the civil action. In light of my concern for the significant of conflicting findings of facts in this particular case, I find that deferral is appropriate.

[8] Upon the completion of the civil action, either party may contact the Tribunal to resume these proceedings.

Dated at Toronto, this 9^th^ day of November, 2009.

"Signed by"

____________________________________

Kaye Joachim

Alternate Chair