Muzaffar Khan v. CCSI COMPUCON Systems, 2009 HRTO 1021

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Muzaffar Khan

Applicant

-and-

CCSI COMPUCON Systems (Formerly Getronics Canada)

Respondent

Interim DECISION

Adjudicator: David A. Wright

Date: July 10, 2009

Citation: 2009 HRTO 1021

Indexed as: Khan v. CCSI COMPUCON Systems

1On May 19, 2009, the applicant filed an Application pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of race, place of origin, ethnic origin, disability, creed, and family status. The Application alleges discrimination through dismissal from employment, in scheduling, through harassment, in being denied a training opportunity, in being denied medical leave, and in being denied accommodation on the basis of disability. Together with the Application, the applicant filed a Request to Expedite.

1I have reviewed the Request to Expedite. It is unnecessary for the respondent to respond to this Request. The Request is based on financial hardship and stress caused by the dismissal, which occurred six months prior to the filing of the Application. The Tribunal has held that the types of factors cited by the applicant do not generally constitute indications of urgency as compared with other employment dismissal cases, and that party who has delayed in filing his or her Application without explanation will not be given the priority for Tribunal resources of an expedited proceeding: see, for example, Michael v. McArthur Properties, 2009 HRTO 683. The Request to Expedite is dismissed.

2In his Application, the applicant advised that there has been a court action based upon the same facts as the Application, that he asked the court for a remedy based on the discrimination, and that the court action is still going on. The Tribunal issued a Notice of Intent to Dismiss on the basis that it appeared that a civil proceeding been commenced in a court in which the applicant is seeking an order under s. 46.1 of the Code. The applicant was invited to make written submission as to why he believes the Application is within the Tribunal’s jurisdiction. The applicant argues that the civil proceeding is to seek damages for wrongful dismissal, does not seek reinstatement and is not being processed based on human rights grounds.

3I have reviewed the Statement of Claim. It seeks damages for wrongful dismissal, alleges (at para. 16) that the dismissal was “motivated primarily and, or, fully on account of the medical limitations and restrictions arising from the plaintiff’s disability” and (at para. 20), seeks damages arising from the “nature and manner of termination” including “the defendant’s refusal to accommodate the plaintiff’s return to work on a gradual and/or modified basis”. The Statement of Claim does not refer to any of the other grounds of discrimination alleged by the applicant, nor to events alleged in the Application such as harassment, denial of medical leave, discrimination in scheduling, and denial of training opportunities.

4Section 34 (11) of the Code provides:

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; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

6Section 46.1 reads as follows:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

7In the circumstances, it is appropriate to hear oral argument from the parties on whether the Application is barred, in whole or in part, by s. 34(11) of the Code. Accordingly, the Registrar is requested to schedule a one-day hearing to deal with this preliminary issue, and to deliver the Application to the respondent, together with this Interim Decision. The respondent shall file a Response in Form 2 within 35 days of the date of this Interim Decision, but need only complete sections 1-5 and 21 at this time.

8In preparing for the hearing, the parties may wish to consider the Tribunal’s jurisprudence on s. 34(11), including Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.

9The Tribunal draws the applicant’s attention to the Applicant’s Guide, available on the Tribunal’s website at www.hrto.ca or from the Registrar’s office. The Guide, at pages 2–3, provides a list of resources available to applicants appearing before the Tribunal.