HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
G.G.
Applicant
-and-
1489024 Ontario Ltd. o/a Image Printing and Signs and Noel Elias
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: G.G. v. 1489024 Ontario
WRITTEN SUBMISSIONS
G.G., Applicant ) Grace Vaccarelli, Counsel
1This Application, filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleges discrimination in employment on the basis of sex and sexual solicitation or advances. The Application alleges that on a single occasion, on June 10, 2009, Noel Elias, the personal respondent, sexually harassed the applicant. The Application has been scheduled for hearing on May 30 and 31, 2012.
2The purpose of this Interim Decision is to address the applicant’s Request for Order During Proceedings (the “Request”) filed on November 29, 2011. The applicant requests that the Tribunal accept the transcript of the March 3, 2011 oral judgement made by Justice Kozloff of the Ontario Court of Justice finding the personal respondent guilty of sexual assaulting the applicant on June 10, 2009. In so doing the applicant requests that the evidence accepted by Justice Kozloff be accepted by the Tribunal, that the verdict of sexual assault be accepted by the Tribunal and that the respondents be denied the opportunity to relitigate the findings and verdict arising from the personal respondent’s criminal proceedings. The applicant requests that at the hearing she only be required to give evidence on the impact the sexual assault has had on her and her efforts to mitigate since leaving her employment with the respondents. No submissions were received from the respondents in response to the Request.
THE APPLICANT’S REQUEST FOR AN ORDER DURING PROCEEDINGS
3The applicant submits that on June 10, 2009, she was sexually assaulted by the personal respondent and that after a full criminal trial where both the accused and victim gave evidence, Justice Kozloff convicted the personal respondent of sexual assault contrary to section 265.1 of the Criminal Code on the evidentiary standard of proof of “beyond a reasonable doubt”. The applicant notes that in his March 3, 2009 decision Justice Kozloff did not accept the defence of the personal respondent that the applicant consented to the sexual contact and that he did not accept that the applicant ever affirmatively communicated by words or conduct her agreement to engage in sexual activity or that the personal respondent believed that she had. I note that there is no information before me that the personal respondent’s conviction has been appealed.
4The applicant submits that the findings of fact that led to the guilty verdict in the personal respondent’s criminal proceedings are binding on the Tribunal and that it would be an abuse of process to allow the personal respondent to relitigate these findings and/or Justice Kozloff’s verdict. The applicant requests that the Tribunal accept the evidence relied on by Justice Kozloff contained in his March 3, 2011 decision as findings of fact and require that the applicant only give evidence of the impact of the sexual harassment in order for the Tribunal can award the most appropriate remedy. The applicant agrees that it is still open to the respondents to argue what, if anything, flows from these findings and whether the Tribunal can make a finding of sex discrimination, sexual harassment and sexual solicitation under the Code in relation to the events of June 10, 2009.
5The applicant relies on the doctrine of abuse of process as described in the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (“CUPE”) where the Supreme Court affirmed the doctrine of abuse of process can preclude relitigation even though the strict requirements of issue estoppel have not been met. The applicant submits that none of the factors identified in CUPE that could be applied in favour of relitigation apply in the present case.
6The applicant further submits that the Tribunal followed the Supreme Court’s approach in CUPE in Hughes v. 1308581, 2009 HRTO 341. The applicant submits that in Hughes the Tribunal determined that the doctrine of abuse of process as set out in CUPE applied so that the respondent in that case was precluded from relitigating the findings of a criminal court that the respondent was guilty of criminal harassment and the facts underlying that finding.
7The respondents have not filed a response to the applicant’s Request.
DECISION
8I find that it would be an abuse of process to allow the respondents to relitigate Justice Kozloff’s findings of fact and verdict when he determined that the personal respondent sexually assaulted the applicant on June 10, 2009. Accordingly, the applicant’s Request is allowed.
ANALYSIS
9In CUPE the Supreme Court of Canada held that held that the doctrine of abuse of process may apply to prevent relitigation of issues previously determined in a different proceeding. The Court stated at para. 37 that:
…Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.
and went on to explain at para. 52, that:
It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.
10I find that it would be an abuse of process to allow the respondents to challenge the facts as found by Justice Kozloff and relitigate the issues that were determined during the personal respondent’s criminal proceedings. To do so would impeach the integrity of the administration of justice. There is no information before me to indicate that relitigation would be necessary to enhance the credibility and effectiveness of the adjudicative process as a whole.
11The findings of fact made by Justice Kozloff are accepted by the Tribunal, as is the verdict of that the personal respondent is guilty of sexual assault. The respondents are precluded from relitigating those findings of fact; this includes presenting evidence at the hearing that attempts to relitigate those findings of fact. However, it remains open to the respondents to argue whether the Tribunal can, based on the findings of fact and verdict of the Ontario Court of Justice, make a finding of sexual discrimination, sexual harassment and sexual solicitation under the Code.
12The applicant has indicated that she would like to restrict her evidence to the impact the events of June 10, 2009 have had on her and her efforts to mitigate her losses since her employment with the respondents ended. In light of this Interim Decision, the applicant need not re-litigate the findings of fact made by the Ontario Court of Justice. However, at the hearing, it is the applicant’s onus to prove all of the elements required to establish discrimination under the Code, on a balance of probabilities, against all of the respondents she has named. Accordingly, the Tribunal declines, at this time, to make the order that the applicant seeks in her Request regarding her evidence at the hearing.
13Both parties are reminded of the need to meet their obligations under Rule 16 and 17 of the Tribunal’s Rules.
Dated at Toronto this 17th day of January, 2012.
“signed by”
Eric Whist
Vice-chair