HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marek Chuchala Applicant
-and-
Szmidt Counselling & Interpreting Limited Respondents
INTERIM DECISION
Adjudicator: Sherry Liang Date: October 22, 2009 Citation: 2009 HRTO 1741 Indexed as: Chuchala v. Szmidt Counselling & Interpreting
1This is an Application filed on July 20, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The Application was sent to the respondent on September 11, 2009, and a Response was filed on October 16, 2009. The respondent states, among other things, that the Application contains "slanders" and defamatory statements and that the respondent has commenced legal action in Small Claims Court. The respondent attaches to its Response a copy of the Claim filed against the applicant in Small Claims Court. The Claim is described as based in "business lost due to slanders, accusations of fraud, accusations of discrimination, and defamation."
3The Tribunal has not yet sent the Response to the applicant, but it is apparent that the applicant is aware of the Small Claims Court action. The applicant has filed a Request to Expedite Proceedings. Although it is not entirely clear, it seems that the applicant wishes to have his Tribunal Application dealt with before the Small Claims Court action proceeds. In support of his Request, the applicant suggests that being required to disclose information about his Application as part of a Statement of Defence will affect the fair and just resolution of the merits of his Application. In describing the harm that would result if the Request is denied, the applicant states that if the respondent is successful in the Small Claims Court action, he will suffer financial hardship and would also suffer grave medical consequences.
4The applicant describes other harms that will result, all of which appear to reflect a concern about whether the Tribunal will proceed with his Application at all, rather than a concern that the Application proceed on an expedited basis.
5On my reading of the Request, it appears that the applicant may be under a misapprehension as to the effect of the Small Claims Court action on his Application. The filing of the Small Claims Court action does not automatically result in a dismissal or postponement of an application before the Tribunal. Although the respondent has requested that the Application be dismissed, or deferred until the action is completed, the Tribunal sees no basis to grant these requests. Section 34(11) of the Code bars an Application where a civil proceeding has been commenced in which a remedy for a human rights violation is claimed. The applicant has not made a claim to a court requesting a remedy based on the alleged human rights violation. Rather, it is the respondent which has initiated the court action, and although it may arise out of the Application, the respondent is not itself making any human rights claim.
6Further, the Tribunal sees no reason to defer the processing of this Application in the face of a court action that appears to have been filed as a response to the Application. The applicant suggests in his Request to Expedite that the respondent's actions are a reprisal for his filing of his Application with the Tribunal. Section 8 of the Code provides:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.
7As to the Request to Expedite, in Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9 the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal's regular process.
8In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that another basis for expediting an application may be where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.
9In accordance with Rules 5.2 and 21.3 of the Tribunal's Rules of Procedure, the Tribunal does not require a Response to Request to Expedite from the respondent. Having reviewed the applicant's materials, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal's jurisprudence. In addition to the above, I note that the financial and other consequences the applicant refers to in his Request are based on an assumption that he will lose the civil action. That action is still in its initial stages. There is no reason why the applicant cannot defend the civil claim and there is also no reason to assume its outcome.
10The Request to Expedite is therefore denied.
11The Response will be sent to the applicant along with this Interim Decision. The applicant may file a Reply in Form 3 within 14 days of the date of this Interim Decision. Whether or not he files a Reply, the applicant is directed to advise the Tribunal whether he wishes to amend his Application to include the issue of reprisal within 14 days. As the respondent has indicated consent to mediate, the applicant is also requested to state whether he will also agree to attend mediation. If he does, a mediation session will be scheduled. If he does not, this matter will be scheduled for hearing.
12In sum, the respondent's requests to dismiss or defer the Application pending the completion of the Small Claims Court action are denied. The Request to Expedite is denied.
13I am not seized of this matter.
Dated at Toronto this 22^nd^ day of October, 2009.
"Signed by"
____________________________________
Sherry Liang Vice-chair