Tekes v. Markham (Town), 2009 HRTO 1365

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Osman Tekes

Applicant

-and-

The Corporation of the Town of Markham and William Wiles

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: August 31, 2009

Citation: 2009 HRTO 1365

Indexed as: Tekes v. Markham (Town)

1The purpose of this Interim Decision is to address the respondents’ request for an early dismissal of the Application on the basis that it is barred by subsection 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and to raise an issue about the potential for deferral of the Application pending the completion of civil proceedings

2The applicant, who is an owner of property in the Town of Markham, filed an Application under s. 34 of the Code on March 25, 2009, which alleges discrimination with respect to services. The Application chronicles a series of incidents involving by-law enforcement issues or other property-related issues in the period 1996 to January 2009. The applicant states that he was discriminated against and treated differently by the respondents because of his ethnic origin, place of origin and ancestry. The Application references a court action based on the same facts as the Application, but the applicant states that he did not ask the court for a remedy based on discrimination.

3The respondents (referred to here collectively as “the Town”) filed a Response on July 23, 2009, which requests an early dismissal of the Application on the basis that a claim based on the same facts has been filed in civil court which requests a remedy based on the alleged human rights violation.

4Specifically, the Town submits that it is involved in a civil proceeding with the applicant and the co-owner of his property (along with the applicant’s neighbours who have been named as third parties in the litigation) pursuant to which the Town is seeking to restrain site alteration to the property. The applicant has filed a counter-claim in which, the Town submits, he makes the same allegations of discrimination made in the Application and seeks a remedy in respect of such allegations.

5Various documents from the civil proceeding are attached to the Response. The documents include a Statement of Claim dated September 2, 2008 filed by the Town and a Statement of Defence and Counterclaim dated October 2, 2008. In the latter document, among other things, the applicant and his co-owner complain that the Town discriminated against them by ignoring their complaints about their neighbours and “acted highhandedly and abused their power as intimidating, discriminating and harassing the defendants”. As a remedy, among other things, the applicant and his co-owner seek damages “for causing stress and preventing the defendants from enjoying in their home as intimidating, harassing and discriminating them”.

6On July 27, 2009, the Tribunal sent a letter to the applicant enclosing the Response and identifying the request for early dismissal based on section 34(11). The applicant was invited to file a Response to the request to dismiss in Form 11, by 14 days after July 27, 2009. No Response to the request has been filed.

SECTION 34(11)

7Section 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.

8Section 46.1 of the Code provides:

(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.

9Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action: see Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10.

10On the basis of the information before me I am not able to conclude that section 34(11) is engaged in this Application. The respondent relies entirely on the wording of the applicant’s Counterclaim in support of its contention that this Application is barred under section 34(11). On my review of that Counterclaim, while it does appear that there is overlap in the subject matter of the two proceedings and damages are sought in each, it is not apparent that the applicant is seeking an order under section 46.1 regarding the “same infringement” in the civil proceeding. The Application alleges discrimination on the basis of prohibited grounds under the Code. While the Counterclaim mentions “discriminating” and “harassing” behaviour, I cannot conclude that it claims an infringement of the Code.

11For these reasons, the respondent’s request for an early dismissal of the Application on the basis that it is barred by subsection 34(11) of the Code is dismissed.

DEFERRAL

12However, I also find it appropriate to seek the parties’ submissions on whether the Application should be deferred pending the completion of the civil litigation.

13The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

14The initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same human rights issues are being raised before another decision-maker with the authority to deal with those issues. When human rights issues are not clearly engaged in the other proceeding, but the application raises facts or issues which overlap with those in another concurrent proceeding, the Tribunal may nonetheless defer determination of the application. In making this determination the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it: see Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 966.

15The Tribunal therefore directs the parties to provide their written submissions on whether this Application should be deferred pending the completion of the civil litigation. The Town must deliver and file its submissions by September 14^th, 2009. The applicant is directed to respond to those submissions by September 28, 2009.

16I am not seized of this matter.