HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dwayne Linton
Applicant
-and-
The Regional Municipality of Peel Police Services Board, Chris Robinson and Dale Mumby
Respondents
DECISION
Adjudicator: Kaye Joachim
Indexed as: Linton v. Regional Municipality of Peel Police Services Board
WRITTEN SUBMISSIONS BY
Dwayne Linton, Applicant ) Davies Bagambiire, ) Counsel
The Regional Municipality of Peel Police ) Patricia G. Murray, Services Board, Chris Robinson ) Counsel and Dale Mumby, Respondents )
1This Decision addresses whether the Tribunal has jurisdiction over this Application, as the applicant is plaintiff in an ongoing civil proceeding in which he seeks damages based upon the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The complaint filed with the Ontario Human Rights Commission on November 15, 2007 and abandoned upon filing the present Application, alleges that the respondents discriminated on the basis of race and colour in the manner in which they stopped and treated him on April 30, 2007.
3On April 29, 2007, the applicant filed a civil action against the respondents seeking damages for, among other things, racial profiling and violation of section 15(1) of the Canadian Charter of Rights and Freedoms in respect of the same incidents complained of in the complaint.
STATUTORY PROVISIONS
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
5Section 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:
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.
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.
ANALYSIS
6In my view, if a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.
7This interpretation of s. 34(11), in my view, also corresponds to the underlying purpose and rationale for this provision. As stated in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10:
Section 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.
8I find that the factual situation set out in the Application is the same as the factual situation set out in the civil action. While the applicant did not specifically plead section 46.1 of the Code in the Civil Action, in my view the absence of an express pleading of section 46.1 is not determinative: Beaver v. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.
9In the result, I find that the Application is barred by s. 34(11) of the Code. The Application is therefore dismissed.
10The Application is dismissed.
Dated at Toronto, this 11th day of September, 2009.
“Signed by”
Kaye Joachim
Alternate Chair