Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 54

Human Rights Tribunal of Ontario

B E T W E E N:

Nancy Beaver Applicant

-and-

Dr. Hans Epp Dentistry Professional Corporation, Dr. Hans Epp Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil Date: August 18, 2008 Citation: 2008 HRTO 54 Indexed as: Beaver v. Dr. Hans Epp Dentistry Professional Corporation

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto ON M7A 2C7 Phone (416) 326-1312 / 1-866-598-0322 Fax (416) 326-2199 / 1-866-355-6099 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

1This is an application filed August 8, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“the Code”).

2On August 13, 2008, the Tribunal issued a Notice of Intent to Defer the Application and requested the parties make submissions on the proposed deferral. Upon further review, it appears that there may be issues which affect the Tribunal’s jurisdiction to deal with the merits of this application.

3In particular, the application indicates that a civil court action has been commenced which pleads a violation of the Code, and seeks damages for the alleged violation of the Code. It appears that this action is ongoing, and has not been withdrawn or finally determined by the Court. Section 34(11) of the Code provides, in part:

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn….

4In addition, the application indicates that a complaint dealing with the same facts and subject matter as the application was previously filed with the Ontario Human Rights Commission (the “Commission”). The applicant states that the complaint was withdrawn on June 12, 2008. Section 53(8) of the Code provides:

53(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

5As a result, the Tribunal determines that it is appropriate to hear submissions with respect to whether, in the circumstances, this application is barred by virtue of the provisions of sections 34(11) and/or 53(8) of the Code. The Tribunal makes the following Order:

a. The Notice of Intent to Defer dated August 13, 2008 is rescinded and the parties are not required to provide submissions on the proposed deferral;

b. By September 8, 2008 the applicant shall file with the Tribunal and deliver to the other parties, and to the Commission, submissions on whether this application is barred by virtue of section 34(11) and/or 53(8) of the Code, and whether the Tribunal has jurisdiction to deal with the merits of this application;

c. The respondents are not required to file response submissions, or a response to the application at this time. After reviewing the applicant’s submissions, the Tribunal shall determine whether it requires submissions from the respondents on the jurisdictional issues, and if so, will set a timetable for the filing of submissions in response, and for the applicant’s reply;

d. If the Tribunal deems it necessary it will seek submissions from the Commission with respect to the previously filed complaint, the withdrawal of that complaint, and the effect, if any, of section 53(8) on the Tribunal’s jurisdiction to deal with the merits of this application. In those circumstances the applicant and respondents will be given the opportunity to respond to the Commission’s submissions;

e. A copy of this decision shall be sent to the Commission.