Windsor-Essex Catholic District School Board v. Human Rights Tribunal of Ontario, 2018 ONSC 1955

CITATION: Windsor-Essex Catholic District School Board v. Human Rights Tribunal of Ontario, 2018 ONSC 1955

DIVISIONAL COURT FILE NO.: 722/17 DATE: 20180322

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, SACHS and CORTHORN JJ.

BETWEEN:

WINDSOR-ESSEX CATHOLIC DISTRICT SCHOOL BOARD

Jessica A. Koper, for the Applicant

Applicant

– and –

HUMAN RIGHTS TRIBUNAL OF ONTARIO and D.B. BY HIS LITIGATION GUARDIAN J.B.

Brian Blumenthal, for the Respondent, Human Rights Tribunal of Ontario

Jennifer Zdriluk and Wade Poziomka, for the Respondent D.B by his Litigation Guardian J.B.

Respondents

HEARD at Toronto: March 22, 2018

SACHS J. (Orally)

[1]

Overview

The Applicant seeks judicial review of the Tribunal’s interim decision dated November 7, 2017 in which the Tribunal dismissed the Applicant’s request for an early dismissal of D.B.’s application.

[2]

Analysis

Ontario courts have repeatedly stated that they will consider applications for judicial review of ongoing proceedings only in exceptional circumstances (see for example Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541).

3In Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), [2012] S.C.R. 364 at para. 36, the Supreme Court of Canada summarizes the reasons for such judicial restraint as follows:

Early judicial intervention risks depriving the reviewing court of a full record bearing on the issue; allows for judicial imposition of a “correctness” standard with respect to legal questions that, had they been decided by the tribunal, might be entitled to deference; encourages an inefficient multiplicity of proceedings in tribunals and courts; and may compromise carefully crafted, comprehensive legislative regimes.

4In this case, the Applicant submits that there are exceptional circumstances that warrant judicial review of the interim decision at issue. In doing so, its relies on this court’s decision in Toronto Police Services Board v. Briggs, 2017 ONSC 1591, [2017] O.J. No. 1700 (Div. Ct.).

5In Briggs, the Divisional Court exercised its discretion to hear a judicial review of the Tribunal’s interim decision under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). It did so for three reasons (a) there was a risk of inconsistent findings given the specific finding of the Ontario Court of Justice that racial profiling did not exist (which, in effect, was a finding that the activities of the police in stopping the complainant were not the result of discrimination on the basis of race); (b) that the decision had broad implications for other cases, as the Tribunal had found that as a “general principle” it is unfair to dismiss a matter that was considered and rejected in a criminal proceeding; and (c) that the judicial review proceeding was not likely to lead to delay in the Tribunal proceedings.

6None of these conditions exist in this case. It is not clear on the face of the decision of the Child and Family Services Review Board (the “Review Board”) that it made a finding that would be inconsistent with a finding by the Tribunal that D.B. experienced discrimination and that the school board failed to meet its obligations (both procedural and substantive) to reasonably accommodate his alleged disability. The Review Board was considering whether D.B. committed an activity for which he could be expelled, and, if so, whether an expulsion from all schools or his home school was appropriate discipline having regard to the mitigating and other factors set out in the Education Act, R.S.O. 1990, c. E.2.

7In his application before the Tribunal, D.B. alleges breaches of the Code surrounding the school board’s actions between April 4, 2015 and September of 2015. He does not limit his application to the decision to expel. D.B. alleges that the school board failed to accommodate him (both procedurally and substantively); failed in its duty to inquire and subjected him to direct and adverse effect discrimination.

8The Review Board’s expulsion decision did not deal with, or make findings on these issues, It was a de novo hearing that was focused on the issue it had to decide – namely whether D.B. should be expelled and if so, from his home school or all schools. It was not focused on an examination of the school board’s conduct and whether it met the requirements of the Code.

9Further, while the Review Board found that the parents’ refusal to provide the Board full access to the medical records and professionals involved with D.B. rendered expulsion from the home school reasonable, it did not assess whether the request for such information was necessary as part of the duty to accommodate or whether the parents had an obligation under the Code to disclose such information.

10Unlike in Briggs, the interim decision that the Applicant is seeking to review does not contain any statements of general principle that could have broad application for other cases.

11Finally, in this case there is evidence that the application for judicial review interrupted the Tribunal’s processes and caused delay.

12For these reasons we find that the application should be dismissed as premature.

SWINTON J.

[13]

Endorsement and Costs

I have endorsed the Application Record as follows: “This Application is dismissed as premature for oral reasons delivered by Sachs J. today. Costs to the Respondent D.B. fixed at $2,000.00.”

___________________________ SACHS J.

I agree