Court permits human rights applications to proceed despite professional complaints

May 27, 2015 - Toronto - A three-judge panel of the Divisional Court has upheld two decisions of the Human Rights Tribunal of Ontario (HRTO) to allow human rights applications to proceed despite the fact that the applicant in one case had previously initiated a police complaint and in the other case had made a complaint to the College of Physicians and Surgeons.

The respondents to the human rights applications (the Ontario Provincial Police and a urologist) had asserted that the 2011 decision of the Supreme Court in British Columbia (Workers' Compensation Board) v. Figliola, prevented the Human Rights Tribunal from considering applications where, in the language of the Ontario Human Rights Code, "another proceeding has appropriately dealt with the substance of the application." The Divisional Court panel, composed of Justices Harriett Sachs, Alison Harvison Young and Douglas Gray of the Superior Court of Justice disagreed. They cited the subsequent 2013 Supreme Court decision in Penner v. Niagara (Regional Police Services Board), as authority for the approach taken by the Human Rights Tribunal in both cases, which included consideration of whether preventing the applications from proceeding would work an unfairness to the parties.

The judicial review applications were treated as test cases and attracted interventions from a number of equality-seeking organizations, including the Mental Health Legal Committee (MHLC) and the HIV AIDS Legal Clinic of Ontario (HALCO). Marshall Swadron and Mercedes Perez of Swadron Associates served as co-counsel for MHLC and HALCO together with Ryan Peck and Amy Wah of HALCO. Swadron had argued during the hearing that forcing victims of discrimination to choose between protecting others in the future by making a professional complaint and seeking personal human rights remedies before the HRTO was profoundly unfair, particularly given the different purposes served by the two processes.

To read the full text of the Divisional Court's decision in Ontario (Community Safety and Correctional Services) v. De Lottinville, and Kodama v. K.M., 2015 ONSC 3085, please click here.