Introduction

[1] The applicant, Kelly Lynn Donovan, has brought an application pursuant to section 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, for an order dismissing an application made by the respondent, the Regional Municipality of Waterloo Police Services Board (the "Board"), to the Human Rights Tribunal for Ontario. In her application to this Court, Ms. Donovan alleges that the Board's application to the Human Rights Tribunal is an attempt to prevent her from advocating for whistle-blower protection and from speaking freely about her own experience as a police officer with the Board.

[2] This decision addresses the preliminary issue of whether the Superior Court has jurisdiction over Ms. Donovan's application.

[3] Ms. Donovan takes the position that the Superior Court has jurisdiction to entertain her application, arguing that the Court's power to dismiss a "proceeding" pursuant to section 137.1(3) of the Courts of Justice Act applies to proceedings before administrative tribunals such as the Human Rights Tribunal for Ontario.

[4] The Board argues that section 137.1(3) of the Courts of Justice Act does not apply to administrative tribunal proceedings because, as a matter of statutory interpretation, that provision only applies to civil proceedings before a Superior Court.

[5] For the reasons that follow, I agree with the Board that section 137.1(3) of the Courts of Justice Act does not give the Superior Court jurisdiction to dismiss a proceeding pending before the Human Rights Tribunal, and Ms. Donovan's application must therefore be dismissed.

[6] However, as discussed further in these reasons, I do not agree with the other arguments advanced by the Board, including that the Human Rights Tribunal has exclusive jurisdiction over the matters raised in its application to the Tribunal. It will be up to the Tribunal to decide whether it has any jurisdiction over the application brought by the Board in that forum, and, if so, the merits of the Board's position.

Background to Ms. Donovan's section 137.1(3) application

[7] The history of dealings between Ms. Donovan and the Board is complex. This overview is limited to the events that are relevant and necessary for the purpose of deciding the narrow issue of this Court's jurisdiction over Ms. Donovan's section 137.1(3) application.

[8] Ms. Donovan was previously employed by the Board as a police officer. She resigned from that position on June 25, 2017. On June 8, 2017, Ms. Donovan entered into an agreement with the Board and the Waterloo Police Association that set out the terms of her resignation (the "Resignation Agreement").

[9] During the course of the events leading up to the Resignation Agreement, Ms. Donovan brought an application against the Board to the Human Rights Tribunal for Ontario. Prior to Ms. Donavan's resignation, the Board had also initiated an investigation into potential misconduct by Ms. Donovan under the Police Services Act, R.S.O. 1990, c.P.15.

[10] The preamble to the Resignation Agreement states that Ms. Donovan notified the Board that she intended to resign from her position, that the Board wished to recognize Ms. Donovan for her years of service, that the parties wished to resolve Ms. Donovan's application to the Human Rights Tribunal and the Board's complaint under the Police Services Act, and that the parties wished to resolve all outstanding matters between them.

[11] As part of the Resignation Agreement, Ms. Donovan and the Board agreed to sign mutual releases and not to commence any further proceedings "related to the period prior to June 25, 2017". In addition, the parties entered into the following confidentiality provision:

Except where disclosure is required by law, or where disclosure is to Donovan's immediate family members or to persons providing professional financial/legal advice (all of whom agree to be bound by this non-disclosure and confidentiality clause), the parties undertake and agree that they will keep the terms and existence of this Resignation Agreement in absolute and strict confidence at all times, without time limitation, and not disclose its contents to any third party, person or entity. For added certainty, and without limiting the generality of the foregoing, the parties undertake and agree that they will not publicize, discuss, disclose or communicate in any way with any person, entity or organization, in any form whatsoever, the contents or terms of all or any part of the Resignation Agreement. If asked, the parties (and anyone subject to the terms of this non-disclosure and confidentiality clause) will indicate only that all outstanding matters between the parties were settled to their mutual satisfaction, the terms of which statement are strictly confidential.

[12] Since the parties entered into the Resignation Agreement, disputes have arisen on both sides about whether the parties have respected the confidentiality provision of the agreement.

[13] For its part, the Board alleges that Ms. Donovan has made public statements that contravene the Resignation Agreement. For her part, Ms. Donovan claims that the Board disclosed the terms of the settlement in the context of defending a class proceeding brought against the Board by some of its former employees.

[14] Both sets of allegations have led to a series of legal proceedings.

[15] On May 9, 2018, Ms. Donovan commenced an action in the Superior Court in Brampton against the Board. Ms. Donovan claims that the Board breached the Resignation Agreement by disclosing the terms of the settlement in an affidavit sworn in the context of the class proceeding. Ms. Donovan seeks damages of over $210,000. In response to the action, the Board has brought a motion to dismiss the claim on the basis that the Court does not have jurisdiction over the action, taking the position that the Human Rights Tribunal has exclusive jurisdiction over issues related to the enforcement of the settlement or, alternatively, that the grievance and arbitration process under the collective agreement between the Board and the Waterloo Police Association is the proper forum for resolving the issues raised in Ms. Donovan's claim. The motion is scheduled to be heard on February 13, 2019.

[16] On June 28, 2018, the Board filed an application to the Human Rights Tribunal seeking enforcement of the Resignation Agreement. The application is brought pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, which gives parties a right to apply to the Tribunal to address the contravention of a settlement of a Human Rights Tribunal application. In its application to enforce the Resignation Agreement, the Board alleges that Ms. Donovan has engaged in a series of violations of the confidentiality provisions of the agreement. The alleged violations include claims that Ms. Donovan has made a number of public statements in which she has been critical of the Board. For example, the Board claims that the following activities have violated the terms of the Resignation Agreement:

a. Ms. Donavan published a booklet titled "Systemic Misfeasance in Ontario Policing and the Coordinated Suppression of Whistleblowers", in which Ms. Donavan makes some reference to her own experiences with the Board;

b. Ms. Donovan participated in interviews with various news outlets, including 570 News and the CBC, in which she stated that she had been the subject of reprisals by the Board;

c. Ms. Donovan established a Twitter account, website and YouTube channel in which she has made complaints about the Board;

d. Ms. Donovan wrote to former Attorney-General Yasir Naqvi about her views of misfeasance within the Board; and

e. Ms. Donovan made a presentation to the Standing Committee on Justice Policy in respect of Bill 175 in which she stated that she was constructively dismissed from her employment and in which she stated that she had witnessed misfeasance and corrupt practices in the context of internal investigations while working for the Board.

[17] The Human Rights Tribunal has scheduled a hearing of the Board's application for February 22, 2019.

[18] On July 27, 2018, Ms. Donovan brought her own application to the Human Rights Tribunal, claiming that the Board has contravened the Resignation Agreement. Ms. Donovan's application raises the same issues as her civil action, alleging that the Board breached the Resignation Agreement by disclosing the settlement in the context of the class action. During argument of the motion before me, Ms. Donovan indicated that she commenced the application to the Tribunal for the purpose of protecting her interests in the event that the civil action is dismissed.

[19] On September 18, 2018, Ms. Donovan commenced this application under section 137.1(3) of the Courts of Justice Act. In her amended notice of application, Ms. Donovan seeks the dismissal of the application brought by the Board to the Human Rights Tribunal "on the ground that it is a proceeding that limits freedom of expression on matters of public interest".

[20] On September 24, 2018, the parties attended Civil Practice Court for the purpose of addressing the scheduling of Ms. Donovan's section 137.1(3) application. During the attendance, the Board's counsel raised the issue of the Court's jurisdiction to dismiss a proceeding before the Human Rights Tribunal. The presiding judge directed the parties to attend a Chamber's appointment to address the jurisdictional issues.

[21] Accordingly, on November 13, 2018, the parties attended a Chamber's appointment. The presiding judge determined that the jurisdictional issue could not be decided in the context of a Chamber's appointment, and directed that a one hour motion be heard to address the issue on January 10, 2019, which is the motion that came before me. As part of his direction, the judge made a schedule requiring the applicant to serve her materials after which the respondent was to serve its materials. Therefore, while the jurisdictional issue was raised by the Board, the motion before me proceeded as though it was brought by the applicant, with Ms. Donovan presenting her arguments first after which the Board presented its responding arguments.

Analysis

[22] The narrow issue to be decided on this motion is whether section 137.1 gives the Superior Court jurisdiction to dismiss the application brought by the Board to the Human Rights Tribunal.

Section 137.1 of the Courts of Justice Act

[23] Section 137.1(1) describes the purposes of the Court's power to dismiss an action under sections 137.1 to 137.5 of the Courts of Justice Act:

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

[24] Section 137.1(3) requires a judge to dismiss a proceeding in the following circumstances:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

[25] Section 137.1(4) of the Courts of Justice Act provides as follows:

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[26] Enacted in 2015, these provisions are fairly recent and were interpreted for the first time by the Court of Appeal for Ontario in a series of decisions, including 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685. In that decision, the Court conducted a detailed review of section 137.1 of the Courts of Justice Act, including its purpose, which was described as follows, at para. 45:

The purpose of s. 137.1 is crystal clear. Expression on matters of public interest is to be encouraged. Litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage. Plaintiffs who commence a claim alleging to have been wronged by a defendant's expression on a matter of public interest must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant's freedom of expression.

Positions of the Parties

[27] Ms. Donovan argues that the use of the word "proceeding" in section 137.1(3) does not just apply to court proceedings, but also applies to proceedings brought before administrative tribunals such as the Human Rights Tribunal.

[28] The Board argues that Ms. Donovan's application should be dismissed for the following reasons:

a. The Court's power to dismiss a proceeding pursuant to section 137.1 is limited to civil actions and applications. The Court does not have the power to dismiss a proceeding before an administrative tribunal such as the Human Rights Tribunal;

b. The Board's application before the Human Rights Tribunal does not relate to the “expression” of a matter of "public interest" because it arises from the Resignation Agreement;

c. The Human Rights Tribunal has exclusive jurisdiction over enforcement of the Resignation Agreement; and

d. Even if the Human Rights Tribunal does not have exclusive jurisdiction, allowing Ms. Donovan's application to go forward would lead to the unnecessary expenditure of limited judicial resources given that proceedings have already been commenced before the Human Rights Tribunal.

[29] In my view, the matter can be decided entirely on the basis of whether the Board's application to the Human Rights Tribunal is a "proceeding" for the purposes of section 137.1(3). However, as set out below, I do address the other issues raised by the Board to emphasize that I see no merit to those arguments and that my decision is confined to the jurisdictional issue.

Whether the application to the Human Rights Tribunal is a "proceeding" for the purpose of section 137.1(3) of the Courts of Justice Act

[30] The determination of this issue is a matter of statutory interpretation.

[31] As held by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[32] From a review of the use of the word “proceeding” in section 137.1(3) of the Courts of Justice Act in the context of the statute as a whole, in my view this section does not give the Court jurisdiction to dismiss an application pending before an administrative tribunal such as the Human Rights Tribunal.

[33] Section 1 of the Courts of Justice Act does not define "proceeding", however it defines "action" and "application" as both being civil proceedings.

[34] Rule 1.03 of the Rules of Civil Procedure defines "proceeding" as "an action or application".

[35] Section 137.1 of the Courts of Justice Act falls within Part VII of the Act, which is titled "Court Proceedings". Section 95(1), which describes the application of Part VII of the Act, specifies that "This Part applies to civil proceedings in the province of Ontario".

[36] Notably, sections 95(2) and 95(3) identify specific sections of Part VII that "also" apply to proceedings under the Criminal Code and the Provincial Offences Act.

[37] Similarly, section 109, which sets out the requirements for service of a Notice of Constitutional Question on the Attorney General of Canada and the Attorney General of Ontario in certain circumstances, specifies at subsection 109(6) that "This section applies to proceedings before boards and tribunals as well as to court proceedings".

[38] While there is no case that has specifically decided whether the availability of motions under section 137.1(3) only applies to civil proceedings, a number of decisions in Ontario have decided that other provisions under Part VII of the Courts of Justice Act only apply to civil proceedings unless otherwise specified. For example, in Poulton v. Ontario (Racing Commission), [1999] O.J. No. 3152 (C.A.), at para. 19, the Court of Appeal for Ontario held that the power to award costs under section 131(1) of the Courts of Justice Act, which falls within Part VII of the Act, does not apply to administrative tribunals because a "proceeding" within the meaning of the Act does not include a proceeding before an administrative tribunal:

As stated above, a hearing before a tribunal is not a proceeding within the meaning of s. 131(1) of Courts of Justice Act. Nor was it a proceeding with in the meaning of its predecessor, the Judicature Act, R.S.O. 1970 c. 288 s. 82. The order in Re Sawyer, supra, should not be interpreted as authority for awarding costs of proceedings before the Commission.

See also: Chornyj v. Weyerhaeuser Co., [2007] O.J. No. 1758 (Div. Ct.), at paras. 11-12.

[39] Accordingly, it is evident that all provisions in Part VII of the Courts of Justice Act only apply to civil proceedings unless there is an indication that the specific provision also applies to other types of proceedings. There is no such indication with respect to section 137.1.

[40] Ms. Donovan argues that section 137.4 of the Courts of Justice Act demonstrates that section 137.1 is meant to also apply to proceedings brought before administrative tribunals. Section 137.4 provides as follows:

137.4 (1) If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal.

(2) The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),

(a) notice of the stay; and

(b) a copy of the notice of motion that was filed with the tribunal.

(3) A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4).

(4) A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,

(a) the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or

(b) the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay.

(5) A motion under subsection (4) shall be brought before a judge of the Superior Court of Justice or, if the decision made on the motion under section 137.1 is under appeal, a judge of the Court of Appeal.

(6) This section applies despite anything to the contrary in the Statutory Powers Procedure Act.

[41] Rather than assisting Ms. Donovan in her argument, this provision reinforces my view that this Court does not have jurisdiction to dismiss the Board's application to the Human Rights Tribunal. Section 137.4 creates a mechanism for staying a proceeding before an administrative tribunal where there is a related civil proceeding that is the subject of an application under section 137.1. However, section 137.4 does not provide a mechanism conferring authority on a Superior Court judge to stay or dismiss a standalone tribunal proceeding. This is evident from the language in section 137.4(1) which sets as a condition to the application of the section "that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1" (emphasis added). Similarly, subsection (4)(b) sets out the Court's ability to lift a stay where "the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay" (emphasis added). This makes clear that, as a precondition to staying a tribunal proceeding, there must also be an underlying civil proceeding that is the subject matter of the section 137.1(3) motion. Therefore, section 137.4 does not provide for the stay or dismissal of an application before an administrative tribunal in the absence of a parallel proceeding in the Superior Court.

[42] Besides her reliance on section 137.4 of the Courts of Justice Act, Ms. Donovan advances a number of other arguments in support of her position that section 137.1(3) allows the Court to dismiss a standalone proceeding before an administrative tribunal.

[43] First, she argues that the word "proceeding" is used in other parts of the Courts of Justice Act to refer to administrative proceedings, and therefore its use in section 137.1(3) of the Courts of Justice Act cannot be limited to civil proceedings before the Superior Court. For example, she relies on the use of the word "proceeding" in sections 137.4 and 109(6). However, as reviewed above, these sections deal with circumstances where the Courts of Justice Act explicitly applies to proceedings other than civil proceedings. There is no doubt that the word "proceeding" on its own does not only mean a civil proceeding. However, the issue in this case is what the word "proceeding" means as used in section 137.1(3) of the Courts of Justice Act, and whether in that context it is limited to civil proceedings. As reviewed above, a contextual analysis of that provision within the Courts of Justice Act makes clear that the Court's powers on a motion brought pursuant to section 137.1(3) are limited to dismissing actions or applications brought in the Superior Court.

[44] Second, Ms. Donovan relies on the Hansard debates that preceded the enactment of sections 137.1 to 137.5 of the Courts of Justice Act. She relies on the following statement made by Yasir Naqvi, who was the Minister of Community Safety and Correctional Services and the Government House Leader at the time:

The legislation, if passed, will also make procedural amendments to the Statutory Procedure Act to avoid lengthy and expensive legal cost applications before administrative tribunals. That's a very important point, because we forget that a lot of matters in our system today are dealt with by quasi-judicial tribunals. They've been created because they're expert tribunals. They bring a certain level of expertise, and proceedings at those tribunals can be used as a matter of strategic lawsuits against public participation. The Ontario Municipal Board comes to mind because of development issues that many, many communities face. So this particular change is extremely important.

[45] While Hansard debates can play a limited role in statutory interpretation (see Rizzo & Rizzo Shoes Ltd., at para. 35), this passage does not assist Ms. Donovan's position. At the time the Courts of Justice Act was amended to add sections 137.1 to 137.5, amendments were also made to the Statutory Powers and Procedures Act to address the issue of costs before administrative tribunals. This passage clearly refers to those changes and is not relevant to the issue of whether the Court's powers under section 137.1(3) are meant to extend to the dismissal of proceedings before administrative tribunals. Ms. Donovan relies on a couple of other passages from the debates, but they offer no further support for her position.

[46] Finally, Ms. Donovan relies on Rule 1.04(2) of the Rules of Civil Procedure which provides that "Where matters are not provided for in these rules, the practice shall be determined by analogy to them". The issue at the heart of this motion is a matter of jurisdiction and not a matter of procedure. Rule 1.04(2) does not give this Court jurisdiction to dismiss or stay a proceeding before the Human Rights Tribunal by analogy to the power to do so under section 137.1(3) of the Courts of Justice Act.

[47] Accordingly, based on the wording of section 137.1 (3) of the Courts of Justice Act, viewed in the context of the statute as a whole, this Court does not have jurisdiction to dismiss the application the Board has brought to the Human Rights Tribunal to enforce the confidentiality provision of the Resignation Agreement.

Other issues raised by the Board

[48] While the jurisdictional issue is sufficient to dispose of this motion, in my view it is appropriate and necessary to address the balance of the arguments advanced by the Board. I do so to make clear the limited scope of my decision and that I have in fact not decided the balance of the issues in favour of the Board.

[49] As indicated above, one of the Board's arguments is that the Court does not have jurisdiction over Ms. Donavan's application because the issues raised by the Board in its application to the Human Rights Tribunal do not relate to expressions made by Ms. Donovan in the public interest. In advancing this argument, the Board relies on the fact that its application arises from the terms of the Resignation Agreement. I would reject this argument.

[50] In its arguments, the Board suggested that its application to the Human Rights Tribunal would not be caught by section 137.1(3) because it is simply trying to enforce the Resignation Agreement. In my view, this argument is disingenuous. Section 137.1(3) does not limit the causes of action susceptible to its application. It may turn out that the Resignation Agreement provides a justification for the Board's attempt to interfere with Ms. Donovan's public expression, but the fact that the underlying proceeding is about the enforcement of an agreement does not oust this Court's jurisdiction to deal with the issue. In this respect, I note that the decision in 1704604 Ontario Ltd. v. Pointes Protection Association, in which the Court of Appeal addressed the purpose of section 137.1 and the powers of a court under that provision, dealt with facts very similar to those in this case. In that case, the plaintiff brought an action on the basis that statements made by the one of the defendants in a proceeding before the Ontario Municipal Board contravened a settlement agreement. The Court of Appeal found that section 137.1 applied to the litigation and dismissed the action. In doing so, the Court emphasized, at para. 120, that the issues to be decided pursuant to section 137.1 included the scope of the agreement and whether it foreclosed the evidence given by the defendants before the Ontario Municipal Board. The issue raised by the Board's application here is almost identical, and is whether the Resignation Agreement precludes Ms. Donovan from making public statements about her experience with the Board. If the Board had brought an action in this Court to enforce the Resignation Agreement, there is no doubt that Ms. Donovan could bring a motion pursuant to section 137.1 of the Courts of Justice Act for an early determination of whether the Board's litigation is an illegitimate attempt to preclude her from speaking out on matters of public interest. As I indicated to the parties during the hearing of this motion, whether Ms. Donovan's public statements about her former employer and her experience as a police officer are a form of expression in the public interest are issues that go to the core of determining a motion brought under section 137.1(3) of the Courts of Justice Act. They are not properly characterized as preliminary jurisdictional matters, and I would not have dismissed Ms. Donovan’s application on that basis.

[51] The Board also argues that the Human Rights Tribunal has exclusive jurisdiction over issues related to the enforcement of the Resignation Agreement. A similar issue is being raised by the Board on the motion to be heard on February 13, 2019, in the context of Ms. Donovan’s civil action. While it is not necessary for me to decide this issue in the context of this motion, I note that it is not clear to me that the Human Rights Tribunal has any jurisdiction over the Board's application, let alone exclusive jurisdiction. Evidently, there were many issues between the parties that led to the Resignation Agreement. One of those issues was an application made by Ms. Donovan to the Human Rights Tribunal. Under the circumstances, it is difficult to see how the Tribunal has exclusive jurisdiction over the issue of whether the Resignation Agreement precludes Ms. Donovan from making the public statements targeted by the Board. Ultimately, it will be up to the Human Rights Tribunal to decide whether it has jurisdiction over the matter.

[52] Finally, the Board argues that, even if this Court has jurisdiction over Ms. Donovan’s application, it should decline to exercise its jurisdiction because the matter is already before the Human Rights Tribunal. If this Court did have jurisdiction, for example if the Board had brought a civil action and a parallel application to the Human Rights Tribunal as contemplated by section 137.4 of the Courts of Justice Act, I do not see that this is a case in which it would be appropriate to decline jurisdiction. Section 137.1 of the Courts of Justice Act is meant to provide a rapid and effective mechanism for defendants facing litigation that attacks their freedom to express themselves on matters of public interest. There is no such mechanism available to Ms. Donovan before the Human Rights Tribunal. Section 137.4 clearly provides that, where there are proceedings before the Court and before a tribunal, the tribunal proceedings can be stayed pending the resolution of a motion under section 137.1(3). Therefore, in the face of a choice of forum, the legislature has signaled that the Court is clearly preferable.

[53] Accordingly, while I have decided that this Court does not have jurisdiction to dismiss the Board's application to the Human Rights Tribunal, I do not agree with the other arguments advanced by the Board.

Board’s undertaking

[54] Before concluding my reasons, I wish to address one last matter. During argument, the Board noted on a number of occasions that Ms. Donovan had failed to comply with various timelines set by the Human Rights Tribunal for her responding materials, while arguing that the Tribunal is the forum in which the scope of the Resignation Agreement must be addressed. In response, Ms. Donovan, who is acting on her own behalf, explained that she is finding it challenging to deal with a multiplicity of legal proceedings, and that she has focused her efforts on her section 137.1 application to this Court.

[55] While I have found that this Court does not have the authority to dismiss the Board’s application to the Human Rights Tribunal, there is no doubt that Ms. Donovan raises legitimate concerns about whether the Board’s application is a justified effort to prevent her from speaking out about her experience as a police officer with the Board. In the circumstances, in my view, while she has been unsuccessful, Ms. Donovan’s application to this Court was not frivolous or unreasonable.

[56] Given this context, during the hearing of this motion, I sought assurances from the Board that it would not impede Ms. Donovan’s ability to make substantive arguments before the Human Rights Tribunal despite the fact that she may have missed some deadlines. In response, the Board’s counsel gave an undertaking in court not to take the position before the Tribunal that Ms. Donovan is out of time to raise substantive arguments in response to the application. Therefore, subject to the Tribunal’s ability to control its own process, at the Tribunal hearing Ms. Donovan should be allowed to raise issues she may wish to address about the Tribunal’s jurisdiction over enforcement of the Resignation Agreement and to fully respond to the Board’s position that the Resignation Agreement precludes her from speaking publicly about the matters the Board claims are captured by the confidentiality provision of the agreement.

Conclusion

[57] For the reasons above, I find that the Superior Court does not have jurisdiction over Ms. Donovan's application, and the application is therefore dismissed.

[58] At the conclusion of the hearing, I invited submissions on costs. Quite properly, the Board indicated that, in the event it was successful on the motion, it does not seek costs. Accordingly, there shall be no costs on the motion or application.

FAVREAU J.

RELEASED: February 1, 2019

COURT FILE NO.: CV-18-00605386-0000

DATE: 20190201

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

KELLY LYNN DONOVAN

– AND –

REGIONAL MUNICIPALITY OF WATERLOO POLICE SERVICES BOARD

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: February 1, 2019

Donovan v. (Waterloo) Police Services Board, 2019 ONSC 818

Case Summary

Introduction

Background to Ms. Donovan's section 137.1(3) application

Analysis

Whether the application to the Human Rights Tribunal is a "proceeding" for the purpose of section 137.1(3) of the Courts of Justice Act

Other issues raised by the Board

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 4