Simar Alexopoulos v. Toronto Parking Authority, 2009 HRTO 1493

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Simar Alexopoulos

Applicant

-and-

Toronto Parking Authority, Octavio Costa, Sam Roussos and Sukhdev Singh

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: September 17, 2009

Citation: 2009 HRTO 1493

Indexed as: Alexopoulos v. Toronto Parking Authority

WRITTEN SUBMISSIONS BY

Simar Alexopoulos, Applicant ) R. Mark Fletcher, ) Counsel

Toronto Parking Authority, Octavio Costa, ) David Brady, Counsel Sam Roussos and Sukhdev Singh, Respondents )

1This Decision addresses whether the present Application is barred under section 34(11) of 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 August 2, 2006 was abandoned upon filing the present Application with the Tribunal on June 2, 2009. The Application alleges that the applicant began experiencing problems at work after he was diagnosed with a disability in 2004 and that his employment was terminated in 2006. He alleges that the respondents failed to accommodate his disability.

3On February 7, 2008, the applicant filed a civil action for wrongful dismissal alleging virtually identical facts. He specifically alleges that the respondents breached their obligations under the Code.

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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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:

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.

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. Although the applicant did not specifically plead s. 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, supra.

9In the result, I find that the Application is barred by s. 34(11) of the Code. The Application is therefore dismissed.