Medrano v. Invoice Payment System Corporation, 2009 HRTO 1289

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Oscar Medrano

Applicant

-and-

Invoice Payment System Corporation and German Suarez

Respondents

DECISION

Adjudicator: Mark Hart

Date: August 20, 2009

Citation: 2009 HRTO 1289

Indexed as: Medrano v. Invoice Payment System Corporation

WRITTEN SUBMISSIONS BY

Oscar Medrano, ) On his own behalf

Applicant )

Invoice Payment System Corporation ) Monica E. Caceres, Counsel

and German Suarez, Respondents )

1This is an Application dated December 29, 2008 and filed under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission on February 14, 2007.

2The purpose of this Decision is to address the issue raised by the respondents as to whether this Application is barred pursuant to s. 34(11) of the Code as a result of a civil action that was commenced by the applicant on May 22, 2007.

3The applicant’s complaint alleges that he experienced discrimination in employment because of his age as a result of derogatory age-related comments alleged to have been made by the personal respondent, other instances of alleged mistreatment by the personal respondent, and ultimately the termination of the applicant’s employment.

4The Statement of Claim filed by the applicant alleges wrongful dismissal, but also seeks damages for mental distress and loss of reputation and exemplary and punitive damages. The material facts relied upon in support of the remedies sought expressly include the allegation that the corporate respondent “has discriminated as against the [applicant] on the basis of age and/or race” and “has tried to get back at the [applicant] for his Ontario Human Rights Complaint, this despite the fact that the [applicant] was well within his right to make such a complaint”.

5Following service of the Statement of Claim, the corporate respondent made a demand for particulars, to which the applicant’s then counsel responded on July 5, 2007. In response to a request for particulars as the acts alleged to amount to harassment and intimidation of the applicant, the applicant’s counsel recited and relied upon substantially the same comments and incidents which form the basis of his human rights complaint. Further, in response to a request for particulars that included a request for the material facts and acts which the applicant alleged constitutes discrimination on the basis of age and race, the applicant’s counsel attached a copy of the human rights complaint filed with the Commission. Applicant’s counsel additionally alleged in his response that it was the applicant’s position that “he had been punished for launching a human rights complaint as against his employer”.

6The civil action was still outstanding as of the time that the applicant commenced this Application and had not been withdrawn or discontinued. Applicant’s former counsel removed himself as counsel of record in the civil action as of November 14, 2007, and since that time the applicant has been representing himself, including preparing and serving his Affidavit of Documents and supplementary productions in the period from January to March 2008.

7On June 15, 2009, the Ontario Superior Court of Justice issued a Status Notice in the civil action, noting that two years had passed since a Statement of Defence in the action had been filed and the action had not yet been placed on the trial list or terminated. The parties were given notice that the action would be dismissed for delay unless within 90 days it is set down for trial, terminated, or the court orders otherwise at a status hearing.

DISCUSSION

8The issue to be determined is whether the Application is barred as a result of s. 34(11) of the Code, which provides as follows:

(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; or

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

9The applicant takes the position that the Application is not barred because the civil action is for “wrongful dismissal” and is not being actively pursued because he can no longer afford a lawyer. However, the civil action is not just for wrongful dismissal, but also expressly alleges a violation of the applicant’s rights under the Code and seeks remedies flowing from the alleged violation of these rights. Further, while I have considerable sympathy for the applicant’s statement that he is no longer able to afford a lawyer to pursue the civil action, the fact remains that the civil action is still active and outstanding and has not been withdrawn. In any event, as noted in the Kupiec decision, the time for assessing whether a civil action falls within the ambit of s. 34(11) of the Code is the time at which the application is “made”, which in this case is when it was filed on December 29, 2008: Kupiec v. Starburst Coin Machines, 2009 HRTO 75.

10The issue under s. 34(11) is whether an order under s. 46.1 is claimed in the civil action as a result of the alleged Code infringement. In the instant case, there is no question that a significant amount of financial compensation is being sought in the civil action as a result of the very same allegations raised in the human rights complaint. As a result, in my view, a remedy under s. 46.1 is being sought as a result of the alleged infringement of the applicant’s rights under the Code. In this regard, I note that it is not necessary for s. 46.1 to be expressly identified in the Statement of Claim, as long as a remedy is being sought that arises out of the infringement of a Code right: Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 11.

11This decision does not mean that the applicant is not entitled to pursue his allegations that his rights under the Code have been infringed. Rather, this decision simply means that having elected to commence a civil action where the infringement of these rights is alleged, the applicant cannot at the same time pursue an application before this Tribunal.

12In making this decision, I am cognizant of the Status Notice issued by the Superior Court and the need for the applicant to take specific steps by no later than September 13, 2009 in order to proceed with the civil action. But I am nonetheless bound by the terms of s. 34(11) of the Code and this Tribunal simply has no jurisdiction to allow this Application to proceed in the circumstances.

13As a result, I find that the Application is barred by s. 34(11) of the Code, and is thereby dismissed in its entirety.