E.R. v. Toronto District School Board, 2013 HRTO 1971

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.R.

Applicant

-and-

Toronto District School Board, Nancy Lerner and Christine Paterson

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: November 28, 2013

Citation: 2013 HRTO 1971

Indexed as: E.R. v. Toronto District School Board

WRITTEN SUBMISSIONS

E.R., Applicant

Self-represented

Toronto District School Board, Nancy Lerner and Christine Paterson, Respondents

Glorie Alfred, Counsel

Introduction

1On May 28, 2013, the Tribunal issued Decision 2013 HRTO 926 (“the Decision”), dismissing the Application because the applicant had commenced a civil proceeding in court concerning the same matters and events that gave rise to the Application.

2Section 34(11) of the Code provides as follows:

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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

3The Application was filed on January 9, 2013. The Application was delivered to the respondents, who filed a Request to Dismiss the Application asking that the Tribunal dismiss the Application under section 34(11). The Decision granted that Request. The Decision stated that the applicant did not reply to the respondents’ Request.

4The applicant filed a Request for Reconsideration which stated, among other things, that the applicant had in fact filed a reply to the respondents’ Request. She also indicated that she had filed an Amended Statement of Claim in her civil action. The respondents state that the applicant did not deliver a copy of the Request to Reconsider to them.

5The Tribunal issued a Case Assessment Direction dated July 10, 2013, which directed the applicant to provide a copy of the Amended Statement of Claim. On July 29, 2013 the applicant sent an Amended Statement of Claim to the Tribunal. The respondents state that the applicant did not send a copy of this document to the respondents.

6On September 10, 2013, I issued a Case Assessment Direction. It outlined the history of the Application to that time and concluded as follows:

The issue before the Tribunal at the moment is whether it is advisable to reconsider Decision 2013 HRTO 926 because the Decision incorrectly concluded that the applicant had not responded to the respondent’s submission that the Application should be dismissed and also therefore failed to consider the applicant's submissions.

If the Tribunal decided that this procedural error was a basis to reconsider the Decision to dismiss the Application under section 34(11), it would not follow that the Decision would be changed. After considering the applicant's submission and the Amended Statement of Claim, the Tribunal might still determine that the Application should be dismissed under section 34(11).

If the Application is not dismissed under section 34(11), it may be appropriate to defer any further consideration of the Application until the civil action has been concluded.

In my view, at this time, it is appropriate to invite submissions from the parties on three questions;

1. Should the Decision be reconsidered because of the procedural error resulting from the fact that the applicant's submissions were not before the Tribunal when it made the Decision to dismiss the Application? Determination of this question may include consideration of the submission that the respondents’ have already filed concerning an alleged abuse of the Tribunal’s process.

2. If the Decision is reconsidered, should the Application still be dismissed under section 34(11)?

3. If the Decision is reconsidered and is not dismissed, should the Application be deferred until the civil action is concluded?

7The parties have now filed submissions on these issues.

Should the Decision be reconsidered?

8Rule 26 of the Tribunal’s Rules of Procedure concerns how the Tribunal will consider requests for reconsideration. Rule 26.5 states:

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9In this case, there was a procedural error in the process leading to the Decision. Through an administrative error, the applicant's reply to the respondent’s request that the Application be dismissed was not before me at the time of the Decision. The applicant's reply was not in the form of a Tribunal Reply (Form 3). Instead she filed a Response to a Request for an Order (Form 11). However, it is clear that the information in the Form 11 was in fact the applicant's Reply to the respondents’ request for early dismissal under section 34(11).

10The fact that I did not have the applicant’s submissions before me when I made the decision to dismiss the Application under section 34(11) is, in my view, a factor that outweighs the public interest in the finality of Tribunal decisions, and means that it is appropriate to reconsider the Decision.

Should the Decision be altered?

11The fact that a Decision is reconsidered does not mean that it will necessarily be changed or that the disposition of the Application will be different. After reconsidering its decision, the Tribunal may conclude that the original conclusion was correct.

12As noted in the earlier Case Assessment Direction, the Application alleged differential treatment by the school and the school principal on the basis of race and colour, ancestry, place of origin, citizenship, ethnic origin, and family status. The Application alleged that the differential treatment arose when the applicant went to the school to register her daughter when she was required to provide documents allegedly not required of others. The Application further alleges that the school principal refused to allow “African Canadian services or organizations [to] deliver programs at the school”, did not deal with the applicant’s daughter fairly and “disrespected” the applicant. In the supplementary section of the Application, the applicant refers to a visit to her home by the school principal and a school Superintendent. In a subsequent Request for Order During Proceedings, the applicant referred to a “Trespass letter” allegedly issued by the school.

13The original Statement of Claim referred to the same allegations but also made allegations about various events involving the Catholic Children's Aid Society that appear to have started in January 2013.

14In her reply to the respondents’ request that the Application be dismissed under section 34(11), the applicant indicated that she would withdraw the civil action if it meant that she could not continue with the Application before the Tribunal. As noted, this information was not before me when I issued the Decision dismissing the Application.

15The applicant did not do this, but she did file an Amended Statement of Claim. This was filed on June 12, 2013, approximately 2 weeks after my May 28, 2013 Decision dismissing the Application under section 34(11).

16The Amended Statement of Claim strikes the references to general allegations of discrimination and to allegations of discrimination under the Code. It deals instead with the events involving the Catholic Children's Aid Society and matters related to those events. It also mentions events that have occurred subsequent to when the Application was filed.

17In considering the Amended Statement of Claim and the Application it is less clear that section 34(11) applies than was the case with the original Statement of Claim. As discussed in more detail below, on the basis of the Amended Statement of Claim, the Application could be deferred pending the conclusion of the civil action, but would not necessarily be dismissed under section 34(11).

18The respondents submit that the Tribunal should not consider the Amended Statement of Claim in respect to the applicant's Request to Reconsider. The respondents submit that at the time the Decision was made, the applicant had not amended the Statement of Claim. Based on the Statement of Claim that had been filed at the time the Application was filed with this Tribunal, the respondents submit that the Application was correctly dismissed under section 34(11) and that the result of the Decision should accordingly not be changed.

19The issue raised by this submission is whether, having now determined that it is appropriate to reconsider the Decision, I should consider only the original Statement of Claim that was in place at the time the Application was filed and at the time of the Decision, or whether I should consider the amended Statement of Claim that is now in place.

20On this point, I have considered Roycroft v. Premier Salons Ltd., 2013 HRTO 573, in which the Tribunal found that on the basis of an Amended Statement of Claim the Application should be deferred but not dismissed under section 34(11), even though on the basis of the original Statement of Claim the Application would have been dismissed under section 34(11).

21I have also considered Khan v. CCSI COMPUCON Systems, 2009 HRTO 2220, the case referred to by the respondents. In that case the Tribunal dismissed the Application under section 34(11). The applicant in that case had commenced an Application and also filed a Statement of Claim. The Statement of Claim alleged infringements of the applicant's Code-protected rights and also sought remedies under the Code. Following a preliminary hearing at the Tribunal, the applicant indicated that he would seek to file an amended Statement of Claim, but the Decision notes that he did not in fact do so and only intended to do so after the Tribunal proceeding was concluded. In Grogan v. Ontario Human Rights Tribunal, 2012 ONSC 319, the divisional court upheld a similar decision of the Tribunal where the discontinuance or amendment of a civil claim was speculative. These two cases are distinguishable from the current case, where the applicant has, in fact, amended the Statement of Claim.

22In the circumstances of this case, having determined that it is appropriate to reconsider the Decision, I am satisfied that it is appropriate to do so on the basis of all the material before me at this time, and to therefore reconsider the Decision on the basis of the Amended Statement of Claim, and not on the basis of the original Statement of Claim alone.

23As discussed earlier, in this case, there is now an Amended Statement of Claim and it deals with allegations about events that are not the same as those in the Application and also about events that have occurred subsequent to the filing of the Application. The Amended Statement of Claim does not seek a remedy or damages under the Code. The Application deals with earlier events and allegations that are not raised in the Amended Statement of Claim. On the basis of these considerations, I conclude that the Application should not be dismissed under section 34(11).

Deferral

24Some factors that have been identified as relevant in deciding whether to defer consideration of an Application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

25In this case, I am satisfied that the Application should be deferred. It appears that the civil action is under way and that the discovery process has at least started. At this Tribunal the respondents have not yet been required to file a full Response for the reasons set out in this Decision. While the allegations in the Application are different than the allegations raised in the Amended Statement of Claim, there is clearly considerable overlap and it would not be appropriate for the Tribunal to consider the Application until the civil action has been completed to ensure that the parties are engaged in only one proceeding dealing with overlapping issues.

Respondents’ request that the Application be dismissed as an abuse of process

26The respondents submit that the Request for Reconsideration should be denied because the applicant has abused the Tribunal’s processes. In particular, the respondents assert that the applicant has consistently failed to send copies of documents filed with the Tribunal to the respondents. The respondents’ note that the Tribunal's Rules require a party to provide copies of documents to the other parties to the Application.

27Failure by a party to follow the Tribunal’s Rules can lead to serious consequences, particularly when they affect the procedural rights of other parties to the Application. Rule 5.6 provides:

Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.

28The Rules require a party to copy the other parties with documents filed with the Tribunal unless the parties are directed not to do so. The consequences for failing to deliver material could include dismissal of the Application as an abuse of process. However, the Tribunal will only dismiss an Application as an abuse of process in the most serious of cases. In my view, while serious, the applicant's failure to properly copy the respondents on documents filed with the Tribunal is not, at this time, so serious as to warrant the dismissal of the Application. In my view this is a matter that can be raised at such time as the Application is heard by the Tribunal. It is not necessary to deal with this further at this time because the Application is deferred. However, at such time as the applicant seeks to pursue any further action with respect to this Application, the applicant must ensure that she follows the Tribunal's rules, and in particular, she must ensure that any communication sent to the Tribunal about the Application is copied to the respondents’ counsel.

Dated at Toronto, this 28th day of November, 2013.

** “Signed by” **

Brian Cook

Vice-chair