D.F. v. Children’s Aid Society of Hamilton, 2009 HRTO 1879

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.F.

Applicant

-and-

Children’s Aid Society of Hamilton, Andrea Nicol and Judy Blair

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 5, 2009

Citation: 2009 HRTO 1879

Indexed as: D.F. v. Children’s Aid Society of Hamilton

WRITTEN SUBMISSIONS BY

D.F., Applicant ) Self-represented

Children’s Aid Society of Hamilton, )

Andrea Nicol and Judy Blair, Respondents ) Sarah Eves, Counsel

1This interim 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 29, 2008 and abandoned upon filing the present Application, alleges that the respondents discriminated on the basis of sex, family status and disability.

3In March 2009, the applicant filed a civil action against the respondents seeking damages for negligence, malice and abuse of process, for essentially the same actions that form the basis of the human rights Application. On August 28, 2009, the applicant filed a second action based on essentially the same facts, seeking damages for defamation and intentional infliction of emotional distress.

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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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 there is factual similarity between the civil action and the human rights Application, the civil action makes no reference to alleged discrimination or 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 not appropriate at this time. The civil action has just commenced, whereas this Application is scheduled to commence in February 2010.

13The respondents’ Request to defer the Application is denied.