Navlahki v. Progressive Islamic Sunni Vohra Community of Canada, 2009 HRTO 1963

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Muzakkir Navlakhi by his litigation guardian, Mohmed Navlakhi

Applicant

-and-

Progressive Islamic Sunni Vohra Community of Canada o/a Masjid-e-Huzaifa

Respondent

AND B E T W E E N:

Tasnim Navlakhi by his litigation guardian, Mohmed Navlakhi

Applicant

-and-

Progressive Islamic Sunni Vohra Community of Canada o/a Masjid-e-Huzaifa

Respondent

DECISION

Adjudicator: David Muir

Date: November 20, 2009

Citation: 2009 HRTO 1963

Indexed as: Navlahki v. Progressive Islamic Sunni Vohra Community of Canada

WRITTEN SUBMISSIONS BY

Muzakkir Navlakhi by is litigation guardian, Mohmed Navlakhi, Applicant Michael Katzman, Counsel

Tasnim Navlakhi by is litigation guardian, Mohmed Navlakhi, Applicant Michael Katzman, Counsel

Progressive Islamic Sunni Vohra Community Of Canada o/a Masjid-e-Huzaifa, Respondent Ed Morgan, Counsel

1These are two Applications filed April 23, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2This Decision addresses whether the Tribunal has jurisdiction over these Applications because the applicants' litigation guardian is the plaintiff in an ongoing civil proceeding involving related parties in which he seeks, among other things, remedies for the events which are the subject-matter of these Applications.

3The Tribunal requested submissions from the parties on August 5, 2009. The respondent provided its submissions on August 25, 2009. On September 10, 2009, counsel for the applicants requested an extension of time to October 5, 2009 which was granted. The applicants' submissions remain outstanding.

4The respondent asserts that the Applications are barred pursuant to s. 34(11) of the Code because the factual dispute in the human rights complaint that forms the subject matter of these Applications is identical to an ongoing civil action between the applicants' litigation guardian, their father, and two principals of the respondent.

5The litigation guardian, plaintiff in the civil action, is seeking general and special damages in the amount of $250,000, compensatory damages for various alleged torts, punitive and exemplary damages in the amount of $250,000 as well as interlocutory relief from the respondents. These damages are claimed in respect of defamation and an alleged assault on the litigation guardian as well as the alleged failure of the respondents to enroll his children, the applicants, in the respondent's school.

6Both Applications, which are identical, allege discrimination in services on the basis of family status. The applicants allege that the respondent school is controlled by Adam Bholat with whom their father is in litigation arising out of a joint business venture. The essence of the human rights complaints underlying the Applications is that the decision to not enroll the applicants was made because they are the children of the litigation guardian and as a consequence of the fact that that he is in dispute with Bholat.

7In the human rights complaints filed with the Ontario Human Rights Commission, the applicants identified the corporate respondent cited above, as well as three individuals, Adam Bholat, Ahmed Baggia and Elyias Mansuri. None of these individuals were listed in the corresponding TR-1 and accordingly are not respondents in the human rights Applications. The defendants in the civil proceeding are Adam Bholat and Ahmed Baggia.

8The respondent states that the essence of the complaints underlying these Applications is the alleged failure of the respondent to enroll the applicants in the school because they are the plaintiff/litigation guardian's children. The respondent also states that the statement of claim and the narrative of the human rights complaints describe events at the school, the dispute over the payment of school fees and the children's enrollment in almost identical wording. The respondent also states that the civil proceeding is continuing. One of the defendants was recently examined for discovery and questioned at length about the events at the school which form the subject matter of these Applications.

Analysis

9Section 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.

10In this case, there is an on-going civil proceeding that clearly deals with the same allegations and subject matter as the Applications. It is framed in economic tort and contract, but the facts and issues as they relate to the failure to enroll the children in the school are indistinguishable. As well, both the statement of claim and the Applications include allegations regarding a campaign by the principals of the respondent to defame the litigation guardian.

11Other than an assault allegation, the only difference between the Applications and the civil action is the identity of the parties. As noted above the applicants appear to have elected to proceed at the Tribunal only against the corporate respondent. In the civil proceeding damages are sought from two of the three individuals identified as respondents in the human rights complaints as originally filed with the Human Rights Commission. Before the court the plaintiff is the father. In these Applications the applicants are the children but, as minors, they are not competent to bring legal proceedings in their own right. Their father acts as their litigation guardian on their behalf. Do these differences in the identity of the parties affect the s.34(11) analysis?

12But for the identity of the parties it is clear that the Applications would be dismissed in light of the parallel and virtually indistinguishable civil proceeding. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, an application was barred pursuant to s. 34(11) where an applicant had filed a wrongful dismissal action which plead that her termination of employment was discriminatory on the basis of age and disability, contrary to the Code, as well as allegations that the defendants breached their statutory obligation under the Code to accommodate her disability to the point of undue hardship

13The Tribunal's analysis in Beaver is applicable here, particularly with reference to its finding that s. 46.1 need not be pleaded in a civil action in order to trigger the s. 34(11) bar. In that regard, the Tribunal remarked at paragraphs 11 and 12:

To find that s. 34(11) only applies if s.46.1 is pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s.34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

The applicant is correct that s.46.1 was not yet in force at the time the action was filed. The courts may have to determine in what circumstances it applies. However, it is not for the Tribunal to determine the strength of the applicant's Code claims in the court action. Having decided to rely upon the Code in the ongoing action to seek damages (and not having amended the Statement of claim to remove the claims based upon it), the applicant is precluded form bringing this Application by s.34(11). There is no question that the factual and legal foundations fro the Code-based allegations are the same in the Application and the civil action. The Tribunal therefore has no jurisdiction over the Application.

14I agree with the Tribunal's reasoning in Beaver that the omission of s. 46.1 from a Claim would be an overly technical interpretation that would defeat the purpose of s. 34(11). I also find that the lack of explicit reference to the Code is not required to engage the section. (see Hallett v. Grey Bruce Health Services, 2009 HRTO 403; Farlow v. Hospital for Sick Children, 2009 HRTO 739. It is enough in my view that the same factual issues are brought before the court and that remedies be sought in respect of those factual disputes. In our legal world the same facts can give rise to any number of legal claims in a multitude of forums. To my mind the pith and substance of both the civil suit and the Applications is the same – a claim for substantial damages for the failure of the respondent school to register the plaintiff's children/applicants. On that basis these Applications ought to be dismissed.

15What then of the fact that the court proceeding was commenced by the applicant's father, their Litigation Guardian in these Applications, and that he has chosen to proceed against the corporate respondent and its principals in separate proceedings? In dealing with this issue I have assumed that the applicant's father is capable of acting as their Litigation Guardian. I will also assume without deciding, because I have no submissions on the point, that the litigation guardian stands in the shoes of the person in whose name the proceeding is commenced. He or she is that person's legal entity in the proceeding.

16It seems to me, given the nature and role of the Litigation Guardian as briefly described here, that as a matter of law the applicant/plaintiff are the same legal person. I also find that despite the decision to proceed against the corporate respondent and its principals in separate proceedings, to continue to process these Applications while the civil proceeding continues would be inconsistent with the fair just and expeditious resolution of the underlying dispute, as well as the clear legislative intent to avoid duplicative litigation as expressed in section 34(11) as well as sections 45 and 45.1 which allow the Tribunal to dismiss or defer all or part of an Application in certain circumstances. All of the policy issues informing these provisions of the Code are at play: judicial economy, the prospect of inconsistent conclusions on the facts and law and the unfairness of requiring the corporate respondent and its principals to respond to essentially the same claim in more than one legal proceeding.

17The respondent's request is granted. Accordingly, the Applications are dismissed.