G.E. v. Toronto District School Board, 2014 HRTO 229

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

G.E. by his Litigation Guardian G.E.

Applicant

-and-

Toronto District School Board, Tito Faria and Ryan Kilgour

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: February 20, 2014

Citation: 2014 HRTO 229

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

WRITTEN SUBMISSIONS

G.E., Applicant

G.E., Litigation Guardian

Toronto District School Board, Tito Faria and Ryan Kilgour, Respondents

Gail Geronimo, Counsel

Introduction

1This Decision addresses the issue of whether this Application should be dismissed as outside the Tribunal’s jurisdiction pursuant to s. 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant has also commenced civil proceedings against the respondents in the Ontario Superior Court of Justice.

2A hearing in this matter has been scheduled for March 10-12, 2014. In accordance with Rule 3.11.1 of the Tribunal’s Rules of Procedure, the names of the minor applicant and the applicant’s Litigation Guardian have been anonymized.

REQUEST TO DISMISS

3Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

4In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at para. 6, the Tribunal described the operation of s. 34(11) as follows:

If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

5As stated in McMuldroch v. Honda of Canada Manufacturing, 2009 HRTO 2007 at para. 11:

The Legislature by the enactment of section 34(11) requires that applicants make a choice of forum when bringing complaints that their rights under the Code have been violated. The continued processing of this Application directly engages the policy concerns underlying the section – the dangers of inconsistent findings of fact and the waste of public as well as private resources consequent to duplicative litigation.

6In the Application filed on November 19, 2012, the applicant, a black student, alleges that he was the victim of racial profiling by the respondents when they automatically presumed he was the aggressor in a fight with a white student. He alleges further that the respondents’ racial profiling prevented them from conducting a full and fair investigation into the incident. Finally, the applicant alleges that the respondents suppressed information that supported his claim of racial profiling, and as a result, he was charged criminally. As remedies, the applicant seeks monetary compensation of $100,000 for mental anguish, pain, damage to reputation, impaired educational opportunities, lost wages and costs in time and expenses to deal with the fallout of the discrimination. He also seeks a formal apology from the respondents and an order that they undergo human rights training.

7On October 22, 2013, the applicant commenced a civil action in the Superior Court of Justice against the respondents, the Toronto Police Services Board (the “TPSB”) and an individual police officer with the TPSB. The Claim relates to the same incident at school. The Claim states the respondents breached their duty of care to the applicant in investigating the incident and reporting it to the police and that they failed to promote a school climate that was inclusive and accepting of all students, including students that are members of protected groups under the Code. In his Claim, the applicant seeks $500,000.00 in damages pursuant to section 24(1) of the Charter and section 46.1 of the Code.

8On January 17, 2014, the respondents filed a Request for Order During Proceedings (the “Request”) seeking a dismissal of the Application under section 34(11) of the Code on the basis that it is barred by the civil proceeding commenced by the applicant. The respondents submit the applicant’s civil claim is based on the same facts as the Application and requests remedies for alleged human rights violations by the respondents. In the alternative, the respondents seek a deferral of the Application until the civil proceedings have concluded.

9The applicant did not file a response to the Request.

10I find that the applicant has raised substantially the same facts and issues in the civil Claim and in his Application, and has sought similar relief in both claims. The civil claim alleges the respondents’ investigation was informed by and motivated by racist stereotypes under the Code. In the claim, the applicant seeks damages for the infringement of his rights under section 1 of the Code, including compensation to dignity, feelings and self-respect, as provided by the remedies under section 46.1 of the Code. As a result, I find that the continued processing of this Application would directly engage the policy concerns underlying section 34(11) of the Code – that is, the risk of inconsistent findings of fact and the waste of public as well as private resources arising from duplicative litigation.

11For these reasons, I find that the Application is barred by s. 34(11) of the Code. The Application is therefore dismissed. The hearing scheduled for March 10-12, 2014 is cancelled.