HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
N.P. by her litigation guardian, L.P.
Applicant
-and-
Ottawa-Carleton District School Board
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: N.P. v. Ottawa-Carleton District School Board
APPEARANCES
N.P., Applicant ) L.P., Representative
Ottawa-Carleton District School Board, ) Roger Mills, Counsel
Respondent )
1This Application was filed under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).
2The purpose of this Interim Decision is to address the respondent’s Request for early dismissal of the Application.
3For the reasons that follow, the Request is upheld in part and denied in part.
BACKGROUND
4The parties have agreed that the Application raises the following four issues:
Issue A: on June 8, 2001, the applicant was locked out of her home elementary school (Castor Valley) because it did not provide special education in French immersion;
Issue B: on September 1, 2003, the respondent school board removed certain supports and services that had been provided to the applicant at a second elementary school (Sawmill Creek);
Issue C: on October 27, 2004, the applicant was injured following an incident at the school; and
Issue D: on February 7, 2005, the applicant was berated by members of staff.
5The respondent asks the Tribunal to dismiss the Application on the basis of section 45.1 of the Code and because it constitutes an abuse of process.
6The Tribunal conducted an oral hearing on November 1, 2010 to address the preliminary issue of dismissal. The Tribunal sought further oral submissions from the parties regarding the application of section 53(8) of the Code.
7At the hearing held on November 1, 2010, the applicant confirmed that she withdraws the allegations related to Issue A.
8Accordingly, the issues before the Tribunal are whether the remaining portions of the Application (Issues B, C, and D) ought to be dismissed because of sections 53(8) or 45.1 of the Code or because it would be an abuse of process to proceed.
ANALYSIS
History of legal proceedings between the parties
9In addition to this Application, the parties have been involved in a number of legal proceedings as follows:
a. the applicant filed a complaint with the Ontario Human Rights Commission (“Commission”) on December 19, 2000 (“Complaint”) pursuant to the old Part IV of the Code. The Commission did not to refer the Complaint to the Tribunal;
b. the applicant filed an application for judicial review of the respondent’s decision to deny N.P. entry to Castor Valley Elementary School. The application was dismissed;
c. the respondent and two individuals brought an action in defamation against the applicant’s litigation guardian and two other individuals (the “Defamation Action”). The applicant’s litigation guardian counterclaimed against the respondent for, among other things, an order requiring the respondent to provide certain supports and services to the applicant. In a decision rendered on August 8, 2007, Justice Morin found in favour of the plaintiffs. He rejected the counterclaim and held that he did not have jurisdiction to order the respondent to provide particular services to the applicant. Justice Morin’s decision was upheld by the Ontario Court of Appeal. The applicant’s litigation guardian sought leave to appeal the matter to the Supreme Court of Canada. Leave was refused.
Issue B: Allegations regarding Sawmill Creek Elementary School
10The applicant filed a Complaint with the Commission on December 19, 2000 under the old Part IV of the Code. The Complaint contains allegations regarding Castor Valley Elementary School’s alleged failure to accommodate the applicant (Issue A). On its face, however, the Complaint does not allege ongoing discrimination, nor does it allege discrimination or removal of services by Sawmill Creek Elementary School (Issue B).
11The respondent argued that the portions of the Application that relate to Issue B should be dismissed pursuant to sections 53(8) and/or 45.1 of the Code because they or matters substantially similar to them have been addressed by the Commission in the context of the Complaint. The respondent also argued that it would be an abuse of process to allow Issue B to proceed before this Tribunal.
12The respondent states that the Complaint at least implicitly contains allegations substantially similar to Issue B. The respondent argues that allegations that Sawmill Creek Elementary School removed services are based on the same prohibited ground, raise substantially the same issues, and relate to a similar time period as the Complaint. The respondent argues that this is sufficient basis to dismiss this portion of the Application pursuant to s. 53(8) of the Code. In this regard, the respondent relies on Banigan v. Sheridan College Institute of Technology, 2010 HRTO 631 and Mertick v. Office of the Registrar General, 2010 HRTO 1772.
13The applicant argues that the allegations regarding Issue B in the Application are quite different from those contained in the Complaint. They involve different schools and a different time period. According to the applicant, the Complaint relates to a failure to provide services by Castor Valley Elementary School prior to December 2000, while Issue B of the Application relates to an alleged removal of services while the applicant was attending Sawmill Creek Elementary School in 2003.
14The Commission did not refer the Complaint to the Tribunal. Its conclusion that there was insufficient evidence to do so was based, in part, on its finding that the applicant failed to cooperate in the accommodation process.
15The dismissal issue in this case is complicated by the fact that, although the Complaint does not specifically allege ongoing discrimination, the investigator’s report (dated May 24, 2004) that was in evidence before the Commission, does refer to ongoing issues, including whether the applicant could have been accommodated at Sawmill Creek Elementary School.
16The investigator specifically makes findings of fact that the applicant did not cooperate with the respondent beyond 2000 and that this compromised the respondent’s ongoing ability to provide accommodation to her at Sawmill Creek Elementary School. At para. 28 of the investigation report, he writes:
[N.P.] is currently attending Sawmill Creek Elementary School in the Ottawa Carleton School Board and is in Grade One. The evidence indicates that she is currently not meeting the educational requirements of Grade One. Ms. [L.P.] has not yet cooperated to have [N.P.] assessed by a school psychologist, and has not provided any outside assessments of [N.P.] by a qualified psychologist.
17The respondent states that no specific supports were provided to N.P. as of September 1, 2003 because the applicant failed to cooperate in the accommodation process by allowing appropriate assessments. The respondent states that the investigator’s report addresses this issue and that nothing had changed between the investigator’s report and the present.
18The applicant disputed that nothing has changed. She argued that she has, in fact, provided appropriate information to the respondent that would have allowed it to provide proper accommodation as of September 1, 2003.
19The issue before me, at this preliminary stage, is whether this portion of the Application ought to be dismissed because:
a. it involves substantially the same subject matter as the Complaint (s.53(8));
b. another proceeding has already appropriately dealt with the substance of the issue (s.45.1); or
c. because it would constitute an abuse of process to proceed.
Section 53(8)
20Section 53(8) of the Code states:
No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.
21Under section 53(8) of the Code, the Tribunal lacks jurisdiction to accept an application if the allegations it contains relate to the same subject-matter or substantially the same subject-matter as a complaint previously filed with the Commission under the old Part IV of the Code.
22In Mertick, supra, the Tribunal dismissed an application pursuant to section 53(8). It wrote:
A careful review of the materials provided by the respondents and the current Application indicates that the allegation of creed discrimination is at the heart of both claims. In the previous human rights complaint, the applicant asserted the same discrimination allegations arising out of the same type of situation and sought same remedy as claimed in the current Application.
23The respondent argues, based on this passage, that section 53(8) means that the Tribunal has no jurisdiction where the subject-matter of the Application arises out of the same type of situation and the same prohibited ground as the Complaint.
24In my view, Mertick, does not stand for this general proposition, particularly where the “same type of situation” arises at a different period of time and involves somewhat different actors.
25I do not disagree with the general conclusion reached in Mertick: where an applicant has filed a complaint and seeks to re-characterize allegations arising out of substantially the same factual nexus in an application, that application is barred from proceeding by section 53(8). However, I do not think that section 53(8) bars allegations regarding incidents that occurred after the filing of the Complaint where those allegations are not part of the Complaint.
26In the case before me, the Complaint itself relates to alleged discrimination up to December of 2000 while the applicant attended Castor Valley Elementary School. While there are some similarities between these allegations and those involving Sawmill Creek Elementary School, they are not substantially similar for the purposes of section 53(8). The principal distinction is the timeframe. I cannot conclude that just because an applicant alleged a particular kind discrimination under the old Part IV of the Code, she is precluding from ever again raising similar allegations involving the respondent where she feels that she has been discriminated against at a later point in time.
27As I understand it, the respondent argues that the investigator’s findings (and the Commission’s conclusion) regarding the applicant’s failure to collaborate in the accommodation process up to December 2000 (i.e. regarding Issue A) are also conclusive of the allegations of discrimination in 2003 (i.e. Issue B). The applicant disputes this.
28I address this issue in more detail, below, when I consider the doctrine of abuse of process. However, for the purposes of section 53(8), I do not find that there is sufficient factual nexus between the Complaint and Issue B to conclude that they are the same or substantially the same.
29Accordingly, I find that it is not appropriate to dismiss those portions of the Application relating to Issue B based on section 53(8) of the Code.
Section 45.1
30A section 45.1 analysis is necessary in this case because of the apparent scope of the investigator’s report. While I have found that the Complaint does not raise issues of ongoing discrimination, the investigator makes findings of fact in this regard.
31The respondent argues that even if the subject matter of the Complaint is not substantially similar to that of the Application, the investigator’s report specifically and appropriately dealt with the issue of whether there was discrimination at Sawmill Creek Elementary School.
32Section 45.1 of the Code states:
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.
33The principal purpose of section 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.
34In order to establish that section 45.1 applies in the circumstances, the respondent must show that the determination of the Complaint involved a proceeding for the purposes of the Code and that it appropriately dealt with the substance of the Application.
35The difficulty in this case is that the scope of the investigator’s report is broader than the subject matter of the decision rendered by the Commission. This discrepancy was highlighted when the applicant sought a reconsideration of the Commission’s decision not to refer the Complaint to the Tribunal. One of the reasons supporting the request for reconsideration was that N.P. allegedly continued to experience discrimination at Sawmill Creek Elementary School. She appears to have argued that the investigator misapprehended the evidence in this regard.
36In denying the reconsideration, the Commission wrote (at para. 17):
In the circumstances, allegations pertaining to incidents while [N.P.] was in Sawmill Creek have no bearing on the Commission’s original decision made with respect to this complaint. The reason being, the incidents that allegedly occurred at Sawmill Creek was (sic) not part of the allegations made in this complaint and hence, could not have been considered by the Commission when it made the original decision on the matter.
37While the evidence before the Commission included the investigation report, I find that the Commission’s decision did not touch upon every element addressed in the report. More specifically, based on the Commission’s decision and paragraph 17 of the reconsideration, I find that the Commission did not address Issue B in its decision.
38As I have indicated, however, Issue B is addressed by the investigator in his report. I must therefore consider whether the investigator’s report is sufficient basis to dismiss this portion of the Application pursuant to section 45.1.
39In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal held that, at the very least, a “proceeding” includes an adjudicative process established under a statutory regime.
40While the role of the Commission investigator was established under statute, I am not satisfied that his investigation or the report that resulted from that investigation constitute an adjudicative process for the purposes of section 45.1 of the Code. In this regard, I am influenced by the fact that the investigator had no statutory power of decision. He had considerable powers to investigate the allegations contained in the Complaint, but he did not have the ability to adjudicate them. Although the investigator believed that the applicant was not subject to discrimination at Sawmill Creek Elementary School, the Commission, which did exercise adjudicative powers, disregarded that portion of the investigator’s analysis. It found that, given the scope of the Complaint, this issue could have no bearing on the Commission’s decision.
41For all of these reasons, I conclude that it is not appropriate to dismiss Issue B based on section 45.1 of the Code.
Abuse of process
42The Tribunal has the jurisdiction to stay or dismiss an application if to proceed would amount to an abuse of process. This discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”
43In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal explained the doctrine of abuse of process as follows (at para. 55):
The Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice.
44The abuse of process inquiry focuses on whether it would be fair to proceed in the circumstances.
45The Commission has determined that, in regards to Issue A, the applicant did not collaborate in the accommodation process. It found that the respondent’s ability to accommodate the applicant was compromised because the applicant refused to provide assessment information or allow the respondent to conduct an assessment.
46The respondent argues that it was unable to accommodate the applicant in 2003 at Sawmill Creek Elementary School for the very same reason. It states that the applicant did not provide any assessment information beyond what was referred to in the investigator’s report. In essence, the respondent argues that because no additional assessment information was made available to the respondent, the Commission’s conclusion that the respondent could not have accommodated the applicant also applies to the 2003 allegations.
47The applicant disputes that she failed to collaborate in the accommodation process with Sawmill Creek Elementary School. In particular, she states that she submitted a formal medical psychological assessment dated January 27, 2004 to the respondent.
48I accept the respondent’s argument. Absent evidence not considered by the Commission that the applicant provided assessment information to the respondent, the Commission’s conclusions regarding Issue A effectively subsume Issue B.
49In other words, I agree that it would be an abuse of process for the applicant to argue before the Tribunal that the respondent’s accommodation process was discriminatory unless she can establish that she collaborated and gave assessment information to the respondent beyond what was considered by the Commission.
50There is a factual dispute regarding whether any additional assessment information was provided to respondent since the applicant began attending Sawmill Creek Elementary School. As a result, I am not able to determine, at this stage of the proceeding, whether it would constitute an abuse of process to proceed with Issue B.
Next steps
51In my view, the most fair, just and expeditious manner of addressing the abuse of process issue is as follows:
a. By December 17, 2010, the respondent will advise the applicant and the Tribunal whether it received assessment information dated January 27, 2004 from the applicant and whether, in light of this, it wishes to continue to advance the argument that portions of the Application relating to Issue B ought to be dismissed based on the doctrine of abuse of process;
b. If the respondent indicates that it does intend to rely on the doctrine of abuse of process, by January 6, 2011, the applicant will provide to the respondent and file with the Tribunal copies of all documentary evidence regarding any assessment information she provided to the respondent from September 2003 to the present. She may also provide to the respondent and file with the Tribunal written submissions regarding how these documents relate to the abuse of process issue and whether they were considered by the Commission; and
c. By January 20, 2011, the respondent may provide to the applicant and file with the Tribunal written submissions regarding its position on the abuse of process issue in light of the documents submitted by the applicant.
52If the respondent indicates that it does intend to rely on the doctrine of abuse of process, the Registrar will schedule an oral hearing to address this preliminary matter.
53If, at this stage of the proceeding, the respondent decides not to rely on the doctrine of abuse of process regarding Issue B, this is without prejudice to its ability to raise the argument at a later stage, when the Tribunal has a fuller record of evidence before it.
Issue C: Injury
54The applicant alleges that, on October 27, 2004, she was injured in a disciplinary incident at school. The applicant says that she suffered physical injury and emotional upset and that she has been unable to return to school as a result of, among other things, this incident.
55The respondent argues that this issue was addressed by the court in the Defamation Action and that this portion of the Application ought to be dismissed as a result.
56The applicant was not a party to the Defamation Action, which involved, among others, the applicant’s litigation guardian (L.P.).
57The issues raised in the Defamation Action included whether or not L.P. and the other defendants defamed the plaintiffs by issuing a news release stating that Sawmill Creek Elementary school had become unsafe for the applicant and that its principal was under investigation for criminal conduct by the Ottawa Police. The court found that both of those statements were untrue and defamatory. It awarded damages in defamation to the plaintiffs.
58In reaching these conclusions in the Defamation Action, the court did not address whether N.P. was discriminated against by the respondent. However, the respondent argues that the court made findings of fact that are conclusive of the allegations of discrimination regarding Issue C.
59In this regard, Justice Morin made the following relevant findings of fact:
a. At paragraph 13, he wrote:
[N.P.] became agitated and insisted on going to recess. She was guided back into the classroom by Wilson and her classroom teacher Karla [sic] Cheitani. [N.P.] alleged that in the process she injured her finger. I am not satisfied that she actually did so. [Emphasis added.]
b. At paragraph 18, he wrote:
The evidence at trial does not, in any way, support a finding of assault, use of excessive force or any improper action on the part of Wilson that would support the suggestion that the school was unsafe for N.P. at any time.
60In my view, Issue C in the Application is based on facts addressed in the Defamation Action. In the Application, the applicant alleges that her mistreatment by the respondent on October 27, 2004 constituted differential treatment on the basis of her disability. However, in the Defamation Action, the court concluded that the applicant was not mistreated. It specifically found that the applicant did not sustain the injury she alleges in this Application.
61For this Tribunal to address Issue C, it would be necessary to re-litigate the factual conclusions reached by the court in the Defamation Action. In my view, this is precisely what the doctrine of abuse of process is designed to prevent.
62In these circumstances, allowing the litigation of Issue C to proceed before this Tribunal would violate principles of fairness, judicial economy, consistency, finality, and the integrity of the administration of justice.
63Accordingly, those portions of the Application that relate to Issue C are dismissed based on the doctrine of abuse of process.
64In light of this conclusion, it is not necessary for me to determine whether, for the purposes of section 45.1 of the Code, another proceeding has appropriately dealt with the substance of the portions of the Application that relate to Issue C.
Issue D: The February 7, 2005 incident
65The respondent argues that Issue D ought to be dismissed because it was raised in the context of the Defamation Action.
66L.P. mentioned the February 7, 2005 disciplinary incident at para. 23 of her defence to the Defamation Action. She writes:
The defendant [L.P.] states that on 7 February 2005 [N.P.] was traumatized by another discipline incident involving Teacher Carla Cheaitani and Special Education Resource Teacher Ron Brown. This incident was captured on a tape recording.
67This issue seems to be raised in an attempt to provide context to L.P.’s defence of the Defamation Action. L.P. does not seek any remedy in relation to the disciplinary incident and, in fact, the court reaches no conclusion as to whether the alleged incident occurred.
68Section 34(11) of the Code states:
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; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
69I find that section 34(11) does not apply in the circumstances. The Defamation Action involved the applicant’s litigation guardian, not the applicant. In any event, no remedy is sought in regards to the allegations and the court reached no conclusion in this regard.
70I further find that Issue D was not dealt with by the court. Although it is mentioned in L.P.’s defence, the court did not reference or address the issue in its decision. Accordingly, section 45.1 of the Code does not apply.
71Given that the issue was not adjudicated by the court, I also conclude that it would not be an abuse of process for the portions of the Application relating to Issue D to proceed.
72For these reasons, the respondent’s request to dismiss those portions of the Application relating to Issue D is denied.
SUMMARY OF CONCLUSIONS
73The Tribunal has reached the following conclusions:
a. The portions of the Application relating to Issue A have been withdrawn by the Applicant;
b. Sections 53(8) and 45.1 do not apply to Issue B. The Tribunal has set out a process for determining the factual issues that will allow it to determine whether it would be an abuse of process to proceed with those portions of the Application that relate to Issue B;
c. The portions of the Application relating to Issue C are dismissed because it would be an abuse of process to allow them to proceed; and
d. The respondent’s request to dismiss the portions of the Application relating to Issue D is denied.
74I am not seized of this matter.
Dated at Toronto, this 6th day of December, 2010.
“Signed By”
Michelle Flaherty
Vice-chair