B.A. v. Children's Aid Society of Toronto, 2016 HRTO 448

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

B.A. Applicant

-and-

Children’s Aid Society of Toronto Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: April 8, 2016 Citation: 2016 HRTO 448 Indexed as: B.A. v. Children’s Aid Society of Toronto

WRITTEN SUBMISSIONS

B.A., Applicant Self-represented

Children’s Aid Society of Toronto, Respondent Martha Chamberlain, Counsel

1This Application, filed on September 23, 2015, under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods, services and facilities because of family status. Although the ground of family status is checked off in the Application, the allegations are more appropriately described as discrimination on the basis of creed.

2In its Response, the respondent requested that the Application be dismissed because the issues in the Application were raised and dealt with in a child protection trial before Justice Zisman of the Ontario Court of Justice. In the alternative, the respondent requests the Application be deferred pending completion of the appeal of Justice Zisman’s decision.

3The applicant opposes the respondent’s requests. He wants his Application to be re-activated and proceed to a hearing.

4Although the applicant has asked for re-activation, the issue before the Tribunal is whether the Application should be deferred or whether it should proceed to a preliminary hearing to determine whether it has been appropriately dealt with in the child protection proceeding, pursuant to section 45.1 of the Code.

Analysis and Decision

5The applicant has appealed Justice Zisman’s decision. There is no information before the Tribunal that the appeal has been completed. Neither party has provided the Tribunal with a decision on the appeal.

6In my view, a preliminary hearing on the question of whether the Application has been appropriately dealt with should be determined at the conclusion of any appeals of Justice Zisman’s decision. It is premature to determine this issue when an appeal is outstanding.

7That said, the Application should be deferred pending conclusion of any appeal processes.

8The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings. Some of the factors that may be 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 type 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.

9At issue in the Application is the placement of the applicant’s children in foster care. In particular, the applicant alleges that his children were not permitted to take part in their “Islamic belief” and attended a Christian-based church while in foster care. The applicant alleges that the respondent placed sole responsibility on him to address his children’s religious needs. He believes the respondent, together with the foster parent, bore that responsibility.

10The children’s cultural and religious needs were raised before Justice Zisman, and are addressed at paragraphs 173-182 of her decision. A ground of the appeal relied upon by the applicant is that Justice Zisman erred in fact and law by not placing appropriate weight to the importance of the children’s religious and cultural ties with the applicant.

11In my view, the facts and issues in the two proceedings appear to overlap, which raises the potential of inconsistent results. In these circumstances, I find it appropriate to defer consideration of this Application pending the conclusion of the appeal proceeding.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which the Application may be brought back on after the civil action has concluded.

13I am not seized.