Two Important Cases For Regulatory Bodies On The Ontario Human Rights Code

Background

The recent Divisional Court decision of Ontario (Ministry of Community Safety and Correctional Services) v. De Lottinville1 considered the authority of the Human Rights Tribunal of Ontario ("Tribunal") to dismiss a human rights application where the applicant has also brought a complaint, arising out of the same facts, to a professional regulatory body. In De Lottinville, the Divisional Court heard together two applications for judicial review, one from a police officer and the other from a doctor, in a "test case" representing an important development in the Tribunal's jurisprudence.

S. 45.1 of the Human Rights Code2 gives the Tribunal the authority to dismiss a human rights application, in whole or in part, where its substance has been appropriately dealt with in another proceeding. The Divisional Court recognized that the common law principles of finality, judicial economy and consistency are "important ingredients of a fair legal system."3 However, the Court found that these principles must be balanced with "the need to ensure that justice is done in a particular case."4

Summary of Ontario (Ministry of Safety and Correctional Services) v. De Lottinville Dean De Lottinville brought an application to the Tribunal alleging racial discrimination by Ontario Provincial Police ("OPP") officers arising out of events that occurred in Elliott Lake. He had previously brought a complaint under the Police Services Act5 , based on the same interaction with OPP officers. In response, review bodies within the OPP investigated, found that Mr. De Lottinville's complaints were unsubstantiated, and decided to take no further action. The Ontario Civilian Police Commission reviewed and confirmed the OPP's decision, and no disciplinary hearing was held.

In response to Mr. De Lottinville's application to the Tribunal, the OPP and officer in question requested that the Tribunal dismiss Mr. De Lottinville's human rights complaint pursuant to s. 45.1 of the Human Rights Code on the basis that the issue had already been decided under the Police Services Act. The Tribunal declined to dismiss Mr. De Lottinville's human rights complaint, finding that it would be unfair to do so.

The second case involved K.M., a female to male transgendered person, who alleged that Dr. Ron Kodama, an urologist, made remarks in the course of providing medical services that were discriminatory on the bases of disability and gender identity. Before applying to the Tribunal...