On September 2, 2008, the Human Rights Tribunal of Ontario released an interim decision in Campbell v. Toronto District School Board dealing with its ability to hear matters that have already been decided by a different tribunal, body or judicial process. The decision addresses both the long-standing principle regarding abuse of process and the recent revisions to Section 45.1 of the Ontario Human Rights Code (Code), which allow the Tribunal to dismiss a complaint without a hearing.  

Background

This case involves a complaint by the mother of a young boy with autism. She alleges that the Toronto District School Board (TDSB) violated the Code by infringing her son’s right to equal treatment with respect to the provision of education services because of his disability.  

Previously, an Independent Placement Review Committee (IPRC) had identified that the boy was an exceptional student with autism and developmental disability. The IPRC decided to place the boy into a special education class. His mother appealed the decision, seeking accommodation in a regular classroom. She followed the process established under the Education Act, which led to a hearing before the Special Education Tribunal (SET).

The SET denied her appeal and issued an Order confirming her son’s placement in a special education class. She then made a complaint to the Ontario Human Rights Commission, which was referred under the Code for a hearing before the Tribunal. The TDSB objected to the allegations before the Tribunal on the basis that they raised issues that had already been determined by the SET.  

Following the hearing, but prior to a decision from the Tribunal, the new human rights enforcement regime took effect on June 30, 2008. The Tribunal wrote to the parties involved to ask for submissions regarding the effect of the new Section 45.1, which states:  

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.  

Abuse of Process

The Tribunal began its decision by noting that the Code is an important public policy statute that serves to protect rights that are quasiconstitutional in nature. The Tribunal also noted that the right to pursue a complaint under the Code should not be denied absent a compelling reason.  

It then considered whether permitting the complaint to proceed would be an abuse of process. The Commission argued that the SET did not have the same mandate as the Tribunal because its central question was not whether TDSB had failed to accommodate to the point of undue hardship, but rather was attempting to find the most “appropriate” accommodation for the student.  

The Tribunal was not persuaded by this argument. It found that the central purpose of the special education scheme was the accommodation of children with special needs. The SET’s mandate was not limited to a decision about whether to place the student in a regular class or a special education class, but included a consideration of the programs and services required to achieve the appropriate accommodation. The Tribunal was satisfied that the general question before the SET was the same as that before the Tribunal — what accommodations are required in order for the complainant to have access to education services? As a result, there was no doubt that the complaint before the Tribunal raised facts and issues that were the same as the findings by the SET.  

The Tribunal then specifically considered the safeguards available to the parties in the SET proceeding. It noted that the SET was covered by the basic principles of procedural fairness and was a tribunal with specific expertise in special education.  

The Tribunal concluded that it would be an abuse of process to permit the complaint to proceed.  

Section 45.1 of the Code

Despite having already concluded that it would be an abuse of process for the Tribunal to hear the complaint, the Tribunal went on to consider the effect of Section 45.1. The Tribunal noted that Section 45.1 has two parts: (i) was there another proceeding? and (ii) if so, did the proceeding appropriately deal with the substance of the application?  

Another proceeding

The Tribunal finds that, at the very least, another proceeding would include an adjudicative process established under a statutory regime. It concludes that the proceeding before the SET qualifies under Section 45.1 as “another proceeding.”  

Appropriately deal with the substance

The second criterion under Section 45.1 provides more fruitful grounds for discussion. The questions include: (i) to what extent will the Tribunal entertain the merits of the parallel proceeding? and (ii) to what extent will it defer to the decisions and findings of the other proceeding? The Tribunal offers the following guidance on Section 45.1:  

  • Section 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have already been dealt with in another forum. The legislative intention behind Section 45.1 is to avoid duplication of proceedings.
  • Section 45.1 gives a discretion to the Tribunal that is at least as broad as the doctrines of issue estoppel and abuse of process.
  • In deciding whether the other proceeding “appropriately dealt with the substance of the application,” the questions is not whether the complaint was decided correctly in the other proceeding. The Tribunal does not have to be satisfied that it would have reached the same conclusion.
  • However, some type of examination of the decision from the other proceeding is necessary. This examination requires the Tribunal to consider whether the complaint, in its essence, was dealt with in a manner suitable or proper to that essence.
  • The examination does not turn on technical considerations, and it is not dependent on the kind of criteria applied under legal doctrines such as issue estoppel.  

In conclusion, the Tribunal finds that the SET appeal appropriately dealt with the substance of the matters in dispute. Therefore, Section 45.1 provides an additional basis for precluding the re-litigation of the issues raised by the complaint.  

Lessons for Employers

This interim decision sets the foundation for the interpretation of Section 45.1 going forward. Employers can use this section to try to prevent matters from proceeding to the Human Rights Tribunal when they have already been dealt with in another proceeding, such as an arbitration proceeding. Arbitrations follow the fundamental principles of due process and provide the adequate protections necessary for the Tribunal to feel comfortable in determining that the issues were decided fairly.  

It is also clear that the Tribunal will not sit as an appellate body and seek to simply substitute its own decision for that of the arbitrator. In the result, to the extent that matters of discrimination and accommodation can be dealt with in an arbitral context, this could serve to limit or remove an employer’s exposure to protracted proceedings under the Code.