I.K. v. Children’s Aid Society of Toronto, 2015 HRTO 293

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

I.K.

Applicant

-and-

Children’s Aid Society of Toronto, Michelle Winterburn, Jocelyn Hsu,

Julie James, Katherine Duncan and Shannon Deacon

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: March 11, 2015

Citation: 2015 HRTO 293

Indexed as: I.K. v. Children’s Aid Society of Toronto

WRITTEN SUBMISSIONS

I.K., Applicant

Self-represented

Children’s Aid Society of Toronto, Michelle Winterburn, Jocelyn Hsu, Julie James, Katherine Duncan and Shannon Deacon, Respondents

Carole Jenkins, Counsel

1This Decision deals with the request by the respondent, Children’s Aid Society of Toronto (“CAST”) for dismissal of this Application against all of the respondents on the basis that the substance of the Application has been appropriately dealt with in another proceeding.

2The Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services, and facilities because of race, colour, place of origin, citizenship, ethnic origin, and disability. The Application arises from a very unfortunate set of circumstances. The respondent’s child was taken into care by CAST on November 22, 2012, and remained in care. By Judgment of Justice Waldman of the Ontario Court of Justice dated October 15, 2014 (“the Judgment”), the child became a ward of the Crown.

3In an Interim Decision (2014 HRTO 120), the Tribunal deferred this Application pending the outcome of the child protection proceedings which were ongoing at the time. The Tribunal received a request to reactivate this Application from the Applicant on October 30, 2014, following the release of the Judgment. The respondents did not oppose the request. As a result, the Registrar issued a letter dated December 1, 2014 advising the parties that a date would be set to hear oral submissions on whether the Application had been appropriately dealt with in the child protection proceeding. A preliminary hearing took place by teleconference on March 4, 2015.

4It was evident from the submissions of the applicant that he remains extremely distressed by the apprehension of his child. The applicant argued that for him, there are many outstanding questions about why his child was apprehended. It was for this reason that he filed the Application with the Tribunal alleging discrimination against the respondents. The applicant believes the apprehension is linked to the prohibited grounds of race, colour, place of origin, citizenship, ethnic origin, and disability. He is not entirely clear about how he would prove that connection; however, he strongly believes that discrimination was a factor in the apprehension of his child.

5In determining whether or not another proceeding has appropriately dealt with the substance of an application, it is often the case that an applicant is dissatisfied with the outcome of the other proceeding and is seeking to re-litigate the issues before this Tribunal. I am conscious of the fact that this description does not fully capture the depth and range of emotions the applicant is experiencing in the wake of his child being placed in Crown wardship.

6Section 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.

7The Tribunal has held that, in determining whether an Application ought to be dismissed pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another “proceeding”; and (2) if so, whether it “appropriately dealt with” the substance of the Application”.

8There is no question that the Judgment arises from a proceeding. The Tribunal has long accepted that a decision of a court constitutes a proceeding as that term is understood in section 45.1 of the Code.

9Fundamentally the applicant believes that the Judgment does not address his allegations of discrimination with respect to the circumstances that brought about the apprehension of his child. He argues that it would be unfair to bar his human rights Application based on the outcome of the court proceeding.

10I agree entirely with the Tribunal decision in K.M. v. Kodama, 2014 HRTO 526, on the relationship between issue estoppel, fairness and finality. In that decision, the Tribunal found that the fairness of using the results of another proceeding to bar a human rights Application is a principle that ought to be considered in applying s.45.1 of the Code. The Tribunal also noted that an application should not be dismissed as having been “appropriately dealt with” in another proceeding without taking into account the nature of the other proceeding, the applicant’s stake in it and the parties’ reasonable expectations about the impact of the earlier proceeding on their broader legal rights.

11In this case, however, the applicant’s request to proceed with his allegations before this Tribunal would be tantamount to permitting him to appeal the Judgment. This would be outside the authority of this Tribunal. The issues associated with the apprehension of the applicant’s child, the ongoing placement of the child in care, and the ultimate decision to make the child a ward of the Crown were central to the Judgment. In order to consider the applicant’s allegations, the Tribunal would be required to hear the same evidence and reconsider the same issues which were dealt with in the court proceeding. The applicant indicated that he has initiated an appeal of the Judgment, which will be the appropriate forum for addressing the applicant’s disagreement with the outcome of the proceeding.

12For the reasons set out above, I find that the requirements of section 45.1 have been met. The substance of the Application has been appropriately dealt with in another proceeding.

13Accordingly, the Application is dismissed.