HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.D.

Applicant

-and-

Children’s Aid Society of Toronto and Lisa Winter

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: August 18, 2010

Citation: 2010 HRTO 1718

Indexed as: S.D. v. Children’s Aid Society of Toronto

1The applicant filed an Application on January 11, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of various protected grounds in the areas of services, goods and facilities and contracts.

2The respondents have filed a Request to Dismiss on the basis that: (1) the current Application raises the same issues and allegations as were made in an earlier application, Tribunal File No. 2010-04536-I, which was dismissed by the Tribunal, 2009 HRTO 2196 (“First Application”), and (2) the current Application does not raise a prima facie case under the Code.

3No Response has been received from the applicant and the time for filing submissions in response to the request has elapsed.

BACKGROUND

4Following an oral hearing, wherein the applicant was represented, the Tribunal dismissed the First Application on December 17, 2009 finding the substance of the First Application was appropriately dealt with in proceedings before the Ontario Court of Justice. The Tribunal concluded the essence of the allegations raised in the First Application (namely, that the respondents improperly apprehended the applicant’s children and took actions against the family because of race) were the “pith and substance” or essence of the applicant’s arguments in Court. The Tribunal further noted that the Ontario Court of Justice held that there was “an overwhelming case” that the applicant’s children were at risk of sexual harm at the time of the apprehension by the respondents.

5The applicant did not seek reconsideration of the Decision dismissing the First Application.

DECISION

6In Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, the Supreme Court of Canada held that the doctrine of abuse of process may apply to prevent relitigation of issues previously determined by another court or tribunal. The Court noted that “relitigation carries serious detrimental effects”, including risk to principles of judicial economy, consistency, finality and the integrity of the administration of justice and, therefore, should be avoided (paras 37-52).

7I find that it would be appropriate to receive submission with respect to whether or not permitting the current Application to proceed constitutes an abuse of process. Unless parties consent to waive their right to oral submissions, the parties are entitled to an opportunity to make oral submissions before the Tribunal regarding the issue of potential abuse of process and dismissal. As such, the Tribunal orders as follow:

(a) The applicant is directed to communicate in writing with the Registrar and the respondents, within 7 days of this Interim Decision, and advise whether or not he wishes the hearing into these preliminary issues to proceed by way of a teleconference call or in writing;

(b) Within 7 days of receipt of the applicant’s notification, the respondents are directed to advise the applicant and the Registrar as to whether or not they consent to the applicant’s proposed method of proceeding;

(c) The Tribunal will consider the parties’ submissions and schedule future steps accordingly; and

(d) If the applicant does not write to the Registrar in accordance with this Interim Decision, the Tribunal will make a decision based on the information before it or may deem the Application to be abandoned.

8I am not seized.