D.F. v. Hastings and Prince Edward District School Board, 2015 HRTO 1377

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.F. as represented by his Litigation Guardian A.F. Applicant

-and-

Hastings and Prince Edward District School Board Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: October 16, 2015 Citation: 2015 HRTO 1377 Indexed as: D.F. v. Hastings and Prince Edward District School Board

WRITTEN SUBMISSIONS

D.F. as represented by his Litigation Guardian A.F., Applicant Jamie McGinnis, Counsel

Hastings and Prince Edward District School Board, Respondent Nadya Tymochenko, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

Request to amend application

2The applicant filed a Request for Order to amend the Application to include additional allegations.

3The respondent does not take a position on the applicant’s request but asks that it be provided with an opportunity to respond to the amended Application should the Tribunal grant the request to amend.

4As the respondent is not opposing this Request to amend, the request is granted.

has the substance of the Application been appropriately dealt with in another proceeding

5Prior filing this Application, the applicant made a complaint of professional misconduct against one of the respondent’s employees to the Ontario College of Teachers (the “College”). The respondent has submitted that the Application should be dismissed because the matter has been previously reviewed and determined by the College.

Analysis and Decision

6Section 45.1 of the Code provides as follows:

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.

7The Tribunal has interpreted section 45.1 as requiring a two-part analysis: (1) whether there has been another “proceeding”; and (2) if so, whether the other proceeding has appropriately dealt with the substance of the Application.

8The Tribunal has determined that complaints to professional governing and disciplinary committees constitute a “proceeding” within the meaning of the Code. See Magda v. Jaroszynski, 2010 HRTO 1342; Mathurin v. Scully, 2010 HRTO 2340; and Jokstad v. Royal College of Dental Surgeons of Ontario, 2012 HRTO 143.

9There may be reason to question whether the investigation and conclusion of the College, conducted through written submissions, is a “proceeding”; however, in light of my findings below there is no need to resolve this issue.

10For the reasons stated below I find that the substance of the Application was not appropriately dealt with in the College proceeding and therefore, the respondent’s request to dismiss this Application must be denied.

11The Tribunal has interpreted section 45.1 as being a provision that seeks to prevent the re-litigation of issues that have previously been determined by another decision-maker with the authority to consider the Code in their deliberations. The Tribunal has also determined that section 45.1 includes the doctrines of res judicata, issue estoppel, and other legal mechanisms seeking to limit the unfairness and inefficiency of re-litigation of issues that have already been determined.

12This Tribunal has found that the Supreme Court of Canada’s reasoning in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”) applies to the interpretation of s. 45.1 of the Code. See Ormesher v. Schwarz Law LLP, 2014 HRTO 1757; Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 and Claybourn v. Toronto Police Services Board, 2013 HRTO 129.

13While the Supreme Court in Penner acknowledged that finality is an important value in our legal system, the Court concluded will be unfair in some circumstances to apply the doctrine of issue estoppel even where the technical requirements of the doctrine were present. Among the factors that the Court found should have been considered in that case were the following:

a. The fairness of the prior proceeding.

b. Whether it would be unfair to use the results of the prior proceeding to preclude the re-litigation of the issues – amongst the considerations on this point were whether there were significant differences between the purposes, processes or parties’ stakes involved in the two proceedings.

c. Whether it is desirable having regard to the purposes of the other proceeding to burden it with the consequence of an estoppel arising out of the decision in that proceeding. This consideration goes both to the reasonable expectation of the parties in respect of the prior proceeding and the possible effects the burdening of the other proceeding with such consequence on parties’ approach and conduct in the prior proceeding. Equally significantly the court was a concerned that the public interest in individuals making public interest complaints against police officers might be impacted if a complainant’s right to bring a civil action would be prejudiced as a result.

14When the factors in Penner are applied in this Application, I find that the Request to dismiss must be denied.

15The purposes of the two proceedings are substantially different. As is stated on the College’s website, its purpose is to “licence, regulate and govern the teaching profession in the public interest. The College (…) was created to allow the teaching profession to regulate itself”. The College ensures that the teaching profession is meeting standards and disciplines those who fail to meet these standards.

16A complaint to the College can provide no personal remedy to the applicant. While there is a public interest in the addressing breaches of the Code, an application is essentially a private claim of civil wrongdoing and primarily concerned with providing a remedy to the applicant.

17In light of the decision in Penner, the Tribunal must acknowledge that applying 45.1 to dismiss applications in instances where an applicant has also made a complaint to a professional regulator could create a significant disincentive to the public to make complaints about alleged professional misconduct. See Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 at para 38.

18It would be reasonable for the applicant to have expected that a decision of the College regarding allegations of professional misconduct would not prevent the applicant enforcing his rights under the Code.

19I also find that the substance of the Application was not fully addressed in the College complaint. The College complaint addressed allegations of misconduct of one of the respondent’s employees while the Application contains allegations of discrimination by a number of the respondent’s employees.

Order

20The applicant’s Request to amend the Application to include the new allegations detailed in the Form 10 filed on April 13, 2015 is granted.

21The respondent may file an amended Response to address the new allegations within 35 days of the date of this Interim Decision. At the same time, the respondent shall advise the applicant and the Tribunal whether it intends to pursue its argument that there are allegations in the Application that are untimely.

22Within 14 days of receiving the amended Response, the applicant may file Reply to the amendments.

23The respondent’s Request to dismiss the Application under section 45.1 of the Code is denied.

24I am not seized.