A.T. v. Children's Aid Society of Ottawa, 2016 HRTO 51

Human Rights Tribunal of Ontario

B E T W E E N:

A.T.

Applicant

-and-

Children’s Aid Society of Ottawa and Children and Family Services for York Region

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: January 13, 2016

Citation: 2016 HRTO 51

Indexed as: A.T. v. Children’s Aid Society of Ottawa

WRITTEN SUBMISSIONS

A.T., Applicant

Self-represented

Children and Family Services for York Region., Respondent

Amelia Daurio, Counsel

Children’s Aid Society of Ottawa, Respondent

Carole Jenkins, Counsel

1This Application, filed on July 31, 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 disability.

2In its Response, the respondent Children and Family Services for York Region (“York”) requested that the Tribunal defer the Application pending the completion of child protection proceedings before the Superior Court of Justice of Ontario related to the same circumstances as this Application. The parties, including York, however, also indicated that they were willing to participate in mediation. Accordingly, the Tribunal scheduled a mediation session for the parties with alternate notice, as it commonly does. “Alternate notice” acknowledges that mediation is scheduled despite there being outstanding preliminary issues that must be addressed if mediation does not resolve the Application.

3On November 25, 2015, York filed a Request for an Order During Proceeding again seeking deferral of the Application. York submitted that it requested deferral in its Response, but the Tribunal scheduled mediation without addressing the request to defer. York submitted that the facts in the Application are the same as those before the Court in the child protection proceeding. York submitted that deferral is necessary to avoid inconsistent findings of fact.

4The Ottawa Children’s Aid Society consented to York’s request.

5The applicant filed a Response to the Request for an Order opposing the request to defer. The applicant submitted that the Tribunal should hold the mediation and address the request the request to defer if mediation is unsuccessful. The applicant submitted that the facts, legal issues and remedies sought are different in the two proceedings.

Analysis and Decision

6Mediation at the Tribunal is a voluntary process and a party may revoke its consent to mediate at any time. York has not explicitly revoked its consent to mediate, but it is clear on the face of its submissions that it does not wish to mediate. Accordingly, the mediation session shall be cancelled.

7The 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, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. 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: see Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

8This Application concerns child protection proceedings undertaken by the respondents and it is apparent that such proceedings remain in progress before the Court. At issue in the Application, is whether the respondents’ actions in apprehending her children and seeking Crown Wardship for her children violated her human rights. Consequently, the proceedings before the Court and this Tribunal deal with the same facts and also concern the respondents’ mandate under the Child and Family Services Act to protect and promote the best interests of children. In my view, the facts and issues in the two proceedings appear to overlap, which raises the potential of inconsistent results. The proceedings before the Court also appear to be further advanced than this Application.

9In these circumstances, I find it appropriate to defer consideration of this Application pending the conclusion of the Court proceeding.

10The 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.

11I am not seized.