Christopher St. Louis v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Ottawa Police Services Board and Norma Couturier, 2010 HRTO 1637

HUMAN RIGHTS TRIBUNAL OF ONTARIO

Christopher St. Louis

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Ottawa Police Services Board and Norma Couturier

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: August 4, 2010

Citation: 2010 HRTO 1637

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

INTRODUCTION

1This Application, filed on September 15, 2009 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”) alleges that the respondents discriminated against the applicant on the basis of race, ancestry and disability in respect of police services.

2The respondent, Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (“MCSCS”), has filed a Request for Order during Proceedings (“the Request”) asking that the Tribunal dismiss the Application pursuant to s. 34(11) of the Code on the basis that the applicant has commenced a civil proceeding in which he is seeking a remedy in relation to the discrimination alleged in his Application to the Tribunal.

3In the alternative, MCSCS requests that the Tribunal defer the Application pending completion of the civil proceeding.

4The other respondents to the Application, the Ottawa Police Services Board and Norma Couturier, support the Request to Dismiss or Defer the Application and adopt and rely on MCSCS’s submissions. The applicant opposes the Request to Dismiss or Defer.

5For the reasons that follow, the respondents’ Request to Dismiss the Application pursuant to s. 34(11) of the Code is denied. The Request to Defer the Application is also denied at this time because the present circumstances do not warrant deferral of the Application.

Request to Dismiss

6The respondent, MCSCS, submits that in late May 2010, the applicant commenced a civil action naming the three respondents to this Application, as well as five police officers with the Ottawa Police Service and Chris Wyatt (Chief Firearms Officer), as defendants. The applicant’s civil claim alleges that the defendants breached the applicant’s rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms and also claims that the defendants were negligent in carrying out their duties as police officers or firearms officers, or vicariously liable for such negligence, as the case may be. The civil claim seeks damages in respect of the alleged breach of the applicant’s Charter rights and for negligence.

7MCSCS submits that s. 34(11) of the Code bars a person from making an Application to the Tribunal if a civil proceeding has been commenced in relation to the same facts and in which a remedy is being sought in respect of the alleged discrimination:

34.(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.

8MCSCS submits that the legislative intent of s. 34(11) of the Code is to eliminate duplicative proceedings dealing with alleged infringements of a person’s human rights; and that there is a public interest in avoiding concurrent proceedings involving the same facts and issues. MCSCS submits that the facts giving rise to the applicant’s civil claim, namely the seizure of the applicant’s firearms and the revocation of the applicant’s firearms license, are the same as those giving rise to his Application before the Tribunal. On this basis, MCSCS submits that the Tribunal lacks jurisdiction to hear and determine the Application, pursuant to s. 34(11)(a) of the Code. MCSCS relies upon the following cases in support of their Request to dismiss the Application: Beaver v. Dr. Hans Epp Dentistry Professional Corp., 2008 HRTO 282 at para.11; Milligan v. Toronto Jail, 2009 HRTO 2200 at para. 16; Hallett v. Grey Bruce Health Services, 2009 HRTO 403; and Christianson v. The College of Physicians and Surgeons, 2009 HRTO 438.

9It does appear that the applicant’s civil claim and Application to the Tribunal arise out of the same set of factual circumstances. However, a careful review of both the civil claim and the Application reveals that the issues in each are distinct. Specifically, whereas the Application alleges that the respondents discriminated against the applicant as an Aboriginal man with a mental disability, the civil action seeks a remedy for breaches of the applicant’s rights under s. 7 (right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice) and s. 8 (right to be secure against unreasonable search or seizure) of the Charter and for negligence on the part of police officers and firearms officers, and their respective employers.

10I do not disagree with the respondents that the civil claim need not refer expressly to s. 46.1 of the Code (which deals with the court’s remedial jurisdiction under the Code) in order for an Application to be barred by s. 34(11). However, the civil claim must, at a minimum, and whether explicitly or implicitly, seek a remedy for the alleged infringement of the applicant’s rights under Part I of the Code. This is because, according to the wording in s. 34(11)(a) of the Code, a person’s right to file an Application with the Tribunal under s. 34 of the Code is barred only where s/he has filed a civil claim seeking a remedy “with respect to the alleged infringement” of his/her rights under the Code. The mere fact that the civil claim and the Application arise out of the same factual circumstances is not a sufficient basis upon which to conclude that an Application is barred under s. 34(11): Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

11As the applicant quite rightly points out, and unlike the cases relied upon by the respondents, the civil proceeding commenced by the applicant in this case does not allege that the respondents infringed his rights under the Code or seek a remedy in respect of such infringement. Accordingly, I find that the Application is not barred pursuant to s. 34(11) of the Code and the Request to Dismiss on this basis is denied.

Request to Defer

12In the alternative, the respondents request that the Tribunal defer consideration of the Application, pending completion of the civil proceeding. The respondents submit that it is appropriate to defer the Application before the Tribunal because to do otherwise may result in inconsistent decisions on fact or law.

13The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, or at the request of any party (Rule 14.1). Deferral of an Application seeks to ensure that proceedings dealing with the same subject-matter do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

14It is obviously important to avoid concurrent proceedings which might lead to inconsistent findings of fact. This seems to be the greatest factor weighing in favour of deferral in this case, since the facts in the civil proceeding and the human rights Application overlap. However, this must be balanced against the applicant’s interest in having his human rights issues resolved in a reasonably expeditious manner and the Tribunal’s mandate to resolve Applications in a fair, just and expeditious manner.

15In this case, the risk that there will be inconsistent factual findings if the Application is not deferred appears to be small given the expeditious nature of the Tribunal’s process and the fact that the Tribunal proceeding is at a more advanced stage than the civil action. One would expect the Tribunal’s process to be completed before the litigation of the civil claim. Moreover, if the Tribunal were to defer to the court proceeding, it could take years before the applicant’s human rights issues were determined, given the number of parties to the civil proceeding, the nature and breadth of the allegations in that case and the fact that the civil proceeding was commenced more than eight months after the human rights Application was filed. Further, since the human rights issues in the Application do not form part of the civil claim, the civil proceeding as it is currently framed is very unlikely to dispose of the human rights issues altogether. Deferring the Application would only serve to delay the hearing of the human rights Application, with no clear benefit or purpose.

16Taking all of the relevant factors into account, there is an insufficient reason to defer the Application at the present time. The applicant’s interest in an expeditious resolution of his human rights Application outweighs what at present appears to be a small theoretical risk of inconsistent factual findings in the event that the Tribunal does not defer to the civil court proceeding. However, this Interim Decision does not prevent the parties from seeking deferral of the Application at some future point in time in the event that circumstances change, and deferral of the Application becomes warranted.

17I am not seized.