Yong Kim v. Toronto Police Services Board, 2009 HRTO 1603

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yong Kim

Applicant

-and-

Toronto Police Services Board, Phillip D’Souza and Chad Merritt

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: October 5, 2009

Citation: 2009 HRTO 1603

Indexed as: Kim v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Yong Kim, Applicant ) Self-represented

Toronto Police Services Board, )

Phillip D’Souza and Chad Merritt, ) Rebecca Bush, Counsel

Respondents )

1This decision addresses whether the Application is barred or should be deferred as the applicant is plaintiff in an ongoing civil proceeding.

2The complaint filed with the Ontario Human Rights Commission on February 13, 2007 and abandoned upon filing the present Application, alleges that the respondents discriminated on the basis of age, colour, ethnic origin and race in the manner in which they treated him on December 23, 2006. The allegations include unprovoked physical assault.

3In December 2008, the applicant filed a civil action against the respondents seeking damages for assault and battery and violation of his rights under the Canadian Charter of Rights and Freedoms (but not section 15).

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

8However, in this case, while the civil action and the Human Rights Application concern the same facts, the civil action makes no reference to any facts which could give rise to claim for a remedy under the Code. In these circumstances, I find that the Application is not barred by s. 34(11) of the Code.

9I will now consider whether the Application should be deferred pending the outcome of the civil action.

10Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

11Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

12In the circumstances of this case, I find that deferral is appropriate. The resolution of the civil action has the potential to narrow the remedial scope of the Application. Accordingly, the Application will be deferred pending the outcome of the applicant’s civil action.

13At the conclusion of the civil action, either party may contact the Tribunal to continue processing the Application.