HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.N. by his next friend R.N.

Applicant

-and-

Lakehead District School Board, Lucie Nadeau, Thunder Bay Police Services Board, Shawn Harrison, Sylvia Hauth,

Her Majesty the Queen, as represented by the

Ministry of the Attorney General and Dan Mitchell

Respondents

AND BETWEEN

R.N.

Applicant

-and-

Lakehead District School Board, Lucie Nadeau, Thunder Bay Police Services Board, Shawn Harrison, Sylvia Hauth,

Her Majesty the Queen, as represented by the

Ministry of the Attorney General and Dan Mitchell

Respondents

AND BETWEEN

J.N.

Applicant

-and-

Lakehead District School Board, Lucie Nadeau, Thunder Bay Police Services Board, Shawn Harrison, Sylvia Hauth,

Her Majesty the Queen, as represented by the

Ministry of the Attorney General and Dan Mitchell

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 28, 2010

Citation: 2010 HRTO 1610

Indexed as: C.N. v. Lakehead District School Board

1This Interim Decision pertains to three related Applications. Application 2010-04892-I was filed by R.N. on behalf of her minor son C.N., and Application 2010-04889-I was filed on her own behalf. The applicant in Application 2010-04890-I is C.N.’s father and R.N.’s spouse. These Applications were filed on February 19, 2010, and served on the respondents on April 8, 2010.

2Based on my review of the Applications and Responses, there appears to be a number of preliminary issues, including requests to dismiss, clarification with respect to who are the proper parties and how these Applications should proceed.

PROPER PARTIES

Individual Respondent Nadeau

3The Applications stated that the first name of individual respondent Nadeau was “unknown”. Individual respondent Nadeau filed her Response on May 12, 2010, and indicated her first name is Lucie. The style of cause of each of these proceedings is amended accordingly.

Thunder Bay Police

4The Responses filed on behalf of the Thunder Bay Police, Thunder Bay Police Services Board, Shawn Harrison and Sylvia Hauth indicates that the “Thunder Bay Police” is not a properly named respondent because it is not a legal entity capable of responding to any legal action. This Response further indicates that it is filed on behalf of Chief Robert Herman, who provides instructions where the police service has been improperly named as a respondent.

5On June 23, 2010, the applicants filed Requests to Withdraw the Applications as against the “Thunder Bay Police Service”. In their Requests to Withdraw, the applicants identify Chief Robert Herman as a named respondent. In their subsequent correspondence, the applicants continue to identify Chief Robert Herman as a respondent.

6No parties have filed Responses (Form 11) to the Requests to Withdraw and the time for filing such Responses has elapsed. As such, the Applications are withdrawn as against the Thunder Bay Police. The style of cause of each of these proceedings is amended to remove the Thunder Bay Police. However, the Tribunal notes that Chief Robert Herman was not originally identified as a respondent in these matters and, therefore, is not a party to these proceedings.

PROCEED TOGETHER

7The Responses filed on behalf of the Thunder Bay Police Services Board and respondents Harrison and Hauth (collectively, “the respondent Police”) takes the position that, since the Applications contain the same facts and issues, it is an undue burden for the respondent Police to defend against three identical complaints and, as such, the Applications should not proceed separately.

8In their Reply, filed on June 18, 2010, the applicants submit that the Tribunal should consolidate the Applications because they involve the same parties and subject matter.

9Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together. Given the common facts and issues and overlapping interests present in the three Applications, I am satisfied that proceeding together for the purposes of mediation, and if necessary a hearing, is a fair and expeditious approach. In my view, the three Applications should be consolidated and proceed together. There is a public interest in avoiding a multiplicity of proceedings. See Ball v. Ontario (Community and Social Services), 2010 HRTO 360. Furthermore, there is no evidence that consolidating and hearing the Applications together will result in prejudice to any party.

SECTION 45.1 REQUEST TO DISMISS

10Respondent Nadeau requests that the Application be dismissed under section 45.1 of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended (“Code”) because she was involved in a mediation/arbitration process regarding her employment suspension arising out of the facts of this case. Respondent Nadeau notes that she and respondent Lakehead District School Board (“respondent School Board”) engaged in a mediation/arbitration process through which a settlement was reached and a consent order was issued based on the settlement.

11Respondent Nadeau asserts that the mediation/arbitration process appropriately dealt with the substance of the Applications because the questions raised in that process, including whether Nadeau’s alleged misconduct had a discriminatory dimension, were the same as raised in the present Applications. Respondent Nadeau argues that the settlement and consent order achieved a resolution, which in the public interest, should not be re-litigated. Respondent Nadeau submits that to permit the instant Applications to proceed would condone a multiplicity of proceedings, undermine the finality of the arbitration settlement and impose further jeopardy on a personal respondent who has already been subject to significant penalty.

12Section 45.1 of the Code provides as follows:

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.

13There are two parts to the inquiry under section 45.1: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application.

14I do not need to decide whether a mediation/arbitration settlement is a “proceeding” within the meaning of section 45.1 because I find that the mediation/arbitration process did not deal with the substance of these Applications. The mediation/arbitration process focused on the rights and obligations of the respondent Nadeau, as an employee, and the respondent School Board, as an employer. The applicants, and other respondents to the current Applications, were not parties to the grievance and did not participate in the mediation/arbitration process which led to the settlement. The applicants’ rights were not in issue, there was no consideration of the various respondents’ alleged responsibilities, nor any assessment of remedies for any alleged Code contraventions. I conclude that the mediation/arbitration settlement of respondent Nadeau’s grievance did not appropriately deal with the substance of the Applications and, therefore, does not come within section 45.1 of the Code.

15The request for dismissal under section 45.1 is denied.

PRELIMINARY ISSUES

16The respondent School Board submits that the Applications made by R.N. and J.N. on their own behalf do not include any allegations of a duty by the respondent School Board nor any corresponding violation of their human rights and, therefore, the Application should be dismissed. I find that the respondent School Board’s request effectively seeks that the Tribunal assess the alleged factual chronology and circumstances and determine the various issues of responsibility and liability. In my view it would be premature to engage in such a substantive evaluation at this preliminary stage.

17The respondents Attorney General and Dan Mitchell (collectively, “the Crown respondents”) take the position that facts raise the issue of prosecutorial discretion, which is immune from Tribunal review and, further, that the exercise of prosecutorial discretion is not a “service” within the meaning of the Code.

18The respondent Police raise a similar preliminary objection that the decision regarding whether or not to lay a criminal charge is not a “service” as contemplated by the Code.

19The question of whether the Applications raise allegations within a Code protected social area cannot be determined at this preliminary stage. Based on the material before me, it is not plain and obvious that there is no social area within the Tribunal’s jurisdiction. These matters will require an assessment of the facts and evidence, along with an interpretation of the law in the area, in order to determine whether the allegations come within the concept of “goods, services and facilities”. The respondents’ Request to dismiss the Applications on the basis of questions regarding the Code-related area of “services” is denied, without prejudice to the respondents’ rights to raise this issue at a later stage in the proceeding.

20With respect to the Crown respondents’ request that the Tribunal does not have jurisdiction because of the issue of prosecutorial discretion, I note that the applicants’ Replies dispute characterization of the issue as prosecutorial discretion and the scope of any such immunity. As such, I find this matter will also require an assessment of the facts and evidence, along with an interpretation of the law in the area. The Crown respondents’ request that the Tribunal not deal with the Applications because of a lack of jurisdiction is denied, without prejudice to the respondents’ right to raise this issue at a later stage in the proceeding.

MEDIATION

21All parties, except for the Crown respondents, have indicated a willingness to participate in mediation. The Tribunal directs the Crown respondents to advise the other parties and the Registrar in writing within 14 days of receipt of this Interim Decision as to whether or not they are interested in participating in mediation. Based on the Crown respondents’ response, the Registrar will schedule next steps accordingly.

ORDERS

22In summary, the Tribunal orders as follows:

a) The style of cause is amended to reflect Lucie Nadeau as a named respondent;

b) The Applications are withdrawn as against the Thunder Bay Police and the styles of cause are amended accordingly;

c) The Applications are consolidated and will proceed together for the purposes of mediation and hearing;

d) The requests to dismiss the Applications under section 45.1 of the Code as against respondent Nadeau is denied;

e) The preliminary issues raised by the respondent School Board, Crown respondents and respondent Police are denied at this stage of the proceedings; and

f) The Crown respondents will advise the Registrar and all parties in writing within 14 days of receipt of this Interim Decision as to whether or not they will participate in mediation.

23I am not seized.