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Balancing finality and justice in the application of s.45.1

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Section 45.1 of the Ontario Human Rights Code (the “Code”) permits the Human Rights Tribunal of Ontario (“HRTO”) to dismiss all or part of an application where “another proceeding has appropriately dealt with the substance of the application.” In Ontario (Community Safety and Correctional Services) v De Lottinville, 2015 ONSC 3085, the Ontario Divisional Court considered the application of section 45.1, and whether “human rights complainants should be foreclosed from pursuing their complaints at the Tribunal if the facts giving rise to those complaints were the subject of a prior complaint to an administrative body charged with regulating the behaviour of the people against whom the complaints are brought.” The Court noted that in reaching its decision, it sought to balance “finality, judicial economy, and consistency” with “the need to ensure that justice is done in a particular case.”

As summarized by the Court, the Respondent, Mr. De Lottinville, brought an application before the Tribunal alleging racial discrimination by the police. He had previously made a complaint on the same facts under the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “PSA”). The Ontario Provincial Police (“OPP”) investigated his complaint and concluded that his allegations of police misconduct were not substantiated. This decision was reviewed and confirmed by the Ontario Civilian Police Commission (“OCPC”). The OPP and the officer in question requested that the Tribunal dismiss Mr. De Lottinville’s application pursuant to s. 45.1 of the Code. A three-person Tribunal was established and, in an Interim Decision, dated July 25, 2013, the Tribunal declined to exercise its discretion to dismiss Mr. De Lottinville’s human rights application, finding that it would be unfair to do so.

The other Respondent, K. M., brought an application before the Tribunal alleging that he had been discriminated against by the Respondent, Dr. Ron Kodama. Prior to his human rights application, K. M. had complained about Dr. Kodama’s conduct to the College of Physicians and Surgeons of Ontario (the “College”). Similar to Mr. De Lottinville, his complaint to the College did not lead to a hearing, although Dr. Kodama did receive a caution. Dr. Kodama brought an application under s 45.1 of the Code requesting that the human rights application against him be dismissed, which was denied on a number of bases, including the fact that it would be unfair to exercise its discretion to dismiss under s. 45.1.

In reviewing the decisions of the Tribunal, the Court considered the decisions of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola2011 SCC 52 (CanLII), [2011] 3 S.C.R. 422 (“Figliola”), and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII), [2013] 2 S.C.R. 125 (“Penner”).

The Court noted that in Figliola, the Supreme Court considered the provision of the British Columbia Human Rights Code equivalent to Ontario’s section 45.1 and found that it required the Tribunal to ask itself three questions:

  • Did the other tribunal have concurrent jurisdiction to decide human rights issues?
  • If it did, was the previously decided legal issue essentially the same as the issue that is the subject of the complaint before the B.C. Tribunal?
  • If it was, was there an opportunity for the complainant in the previous proceeding to know the case she had to meet and to have the chance to meet it?

The Court noted that in Figliola, “the Supreme Court found that the complainants were essentially trying to relitigate their complaint in another forum” and was critical of the B.C. Tribunal for asking questions that were better suited for a judicial review process.

In Penner, the Supreme Court refused to dismiss a civil action that followed a complaint under the PSA based on the same incident. Although the Supreme Court found that the preconditions to prevent the civil action existed, it concluded that it retained the discretion to allow it to proceed when to prevent it “would work an injustice.”

The Supreme Court in Penner considered the nature and scope of the earlier proceedings and considered the parties’ reasonable expectations in relation to those proceedings. Specifically, the Supreme Court noted that the PSA explicitly contemplated parallel proceedings, the purposes of the two processes were different, Mr. Penner had no financial stake in the disciplinary proceeding, and the potential risk that people would not make complaints under the PSA for fear of undermining a future civil action.

In reconciling and applying the principles of Figliola  and Penner to the Tribunal decisions under review, the Court noted that the Supreme Court in Figliola “was clear in stating that the role of a human rights tribunal in applying and interpreting a statutory provision like s. 45.1 is to have regard to the principles underlying the common law finality doctrines such as issue estoppel, collateral attack, and abuse of process” and that fairness forms an important part of the analysis. The Court wrote, “The Code is remedial legislation that should be construed broadly and purposively. The Tribunal reasonably decided that a purposive interpretation of s. 45.1 did not support dismissing an application if to do so would lead to unfairness.”

The Court reiterated the concern that by preventing the human rights complaints from proceeding, people might be discouraged from bringing complaints to professional disciplinary bodies, adding:

It is important to remember that the goal of professional disciplinary proceedings is different from that of a human rights tribunal. When professional regulatory tribunals exercise their mandate in a diligent and responsible way, public confidence is maintained and increased in the provision of the services being regulated, such as police services or medical services. Human rights tribunals have as their goal the provision of ready access to remedies, whether systemic or personal, designed to prevent discriminatory behaviour and to compensate the victims of such behaviour. By virtue of these differences, the focus of the proceedings in front of these tribunals is and should be different. If bringing a proceeding before one tribunal bars a proceeding before another, the goal of one may be undermined at the expense of the other. The victims of discrimination, who are often from marginalized communities, may be forced to choose which route to take when they often do not have access to the information necessary to make this choice a meaningful one.

Ultimately, the Court concluded that the Tribunal reasonably applied the principles set out in Penner while exercising its discretion under s. 45.1 of the Code in the De Lottinville and Kodama applications, and by allowing them to proceed.

Cory Boyd

About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.