N.G. v. Ontario (Attorney General), 2009 HRTO 2232

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

N. G.

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of the Attorney General

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: December 17, 2009

Citation: 2009 HRTO 2232

Indexed as: N.G. v. Ontario (Attorney General)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which he alleges discrimination on the basis of race, ancestry, place of origin, and ethnic origin in the context of the provision of goods, facilities or services.

2In essence, the allegations relate to proceedings regarding the custody of the applicant’s child. The applicant alleges that the Family Court, the court-appointed mediator or investigator and the Children’s Aid Society have failed to take his child’s race into account in considering the issue of custody.

3On November 3, 2009, the Tribunal issued a Notice of Intent to Defer and invited submissions from the parties on that issue.

4The applicant did not file submissions. The respondent filed submissions in which it urged the Tribunal to defer the matter pending the completion of the matter in Family Court. The respondent advised the Tribunal that a final order has not been made by the court with regard to custody and access.

5Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

6Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

7A deferral is not ordered automatically when parties are involved in other legal proceedings. However, deferral of an application is often appropriate to ensure that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent findings of fact.

8Some 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 types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

9There may ultimately be an issue as to whether the allegations in this matter relate to a social area (services) covered by the Code. Leaving that issue aside for the moment, it seems to me that given the nature of the allegations, it would be premature to consider the matter until the Family Court has rendered a final decision. Until a conclusion has been reached by the Family Court, the Tribunal could not determine whether those proceedings resulted in a breach under the Code. Further, the Family Court proceedings appear to be quite advanced.

10In the circumstances, I find that it is appropriate to defer consideration of this Application pending the conclusion of the Family Court proceedings. The parties may wish to refer to Rules 14.3 and 14.4, which outline how the Application may proceed once the other proceedings have concluded.

11I am not seized of this matter.