Milligan v. Toronto Jail, 2009 HRTO 2200

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Venkat Milligan

Applicant

-and-

Toronto Jail

Respondent

AND B E T W E E N:

Venkat Milligan

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: December 18, 2009

Citation: 2009 HRTO 2200

Indexed as: Milligan v. Toronto Jail

WRITTEN SUBMISSIONS BY

Venkat Milligan, Applicant ) Jackie Esmonde and ( Julian Falconer, Counsel

Toronto Jail and Her Majesty the Queen ) in right of Ontario as represented by the ) Marnie Corbold, Counsel Ministry of Community Safety and ) Correctional Services, Respondents )

1This Decision addresses whether the Applications are barred in light of a civil proceeding pursuant to section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) or, in the alternative, if the Applications should be deferred.

2The complaints filed with the Ontario Human Rights Commission on June 6, 2008 and abandoned upon filing the present Applications, allege that the respondents discriminated against the applicant on the basis of disability and record of offences in the manner in which they treated him while he was incarcerated in the Toronto Jail from October 11, 2007 until the date of the complaint. The applicant alleged that, among other things, the respondents failed to accommodate the applicant’s disability by placing him in a cell without his wheelchair, and failing to provide him with appropriate health care. He alleged that he suffered a deterioration of his condition as a result.

3On June 26, 2009, the applicant filed a civil action against the respondent Ministry, and others seeking damages for, among other things, the treatment he received in the Toronto Jail. In particular, the applicant alleges that as a result of the failure to accommodate his disability, the applicant’s medical condition worsened. The facts as stated in the civil action are very similar to the facts as stated in the human rights Applications, although the legal basis of the claims is different. The civil action claims negligence, nervous shock, breach of fiduciary duty, and breach of sections 15, 7, and 12 of the Charter. The section 15 argument is phrased as follows:

In failing to accommodate the plaintiff’s disability while incarcerated at the Toronto Jail, and in failing to provide reasonable medical care, the defendants violated the plaintiff’s right to equal protection and equal benefit of the law without discrimination based on disability, a right which is guaranteed by section 15 of the Charter.

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.

APPLICANT’S ARGUMENTS

6The applicant argues against the application of section 34(11) to bar his Applications. His arguments can be summarized briefly as follows:

• A broad, liberal, and purposive interpretation of the Code would permit parallel civil and human rights proceedings, because the Courts have the power to award individual remedies but only the Tribunal can issue remedies to promote compliance with the Code.

• The express language of section 34(11) applies only to actions in which section 46.1 remedies in the Code are expressly identified.

• The debates leading up to the amendments confirm the strict interpretation of section 34(11).

Legislative History

7The applicant referred to comments made to the Standing Committee on Justice Policy and the various versions of Bill 107, Human Rights Code Amendment Act, 2006 on the necessity to revise section 46.1 to grant the Court the power to make broader compensatory remedies and remedies to promote compliance with the Code. Section 46.1 was modified from the first reading to the current version. However, these presentations and the modifications to section 46.1 do not point to a definitive interpretation of section 34(11).

Individual Remedies v. Remedies to Promote Compliance with the Code

8The applicant submits that the power of the Courts to award remedies for a breach of the Code is more restrictive than the powers of the Tribunal. Under section 45.2 there is no express provision authorizing the court to “do anything … to promote compliance …” with the Code.

9Thus, the applicant argues, it is essential for a claimant to be able to maintain two proceedings, one in the Courts to obtain an individual remedy and one before the Tribunal to seek a remedy to promote compliance with the Code.

10In my view, the Legislature has given applicants the choice to either file an Application under the Code seeking both individual remedies and remedies to ensure future compliance or to file a civil action seeking an individual remedy. The Legislature did not intend to permit dual proceedings.

11I note that in the present Applications, there are no allegations of systemic discrimination against persons with disabilities. The allegations are all highly personal and relate directly to the applicant. On this basis alone, I would not find the applicant’s arguments on this point persuasive. The application of section 34(11) to this applicant would not have the effect of defeating a claim to promote future compliance.

12It would not be appropriate for me to interpret section 46.1 as it will be up to the Courts to determine the full meaning and intent of that provision. It may be that the Courts will not view that section as authorizing them to issue wide ranging remedies to promote compliance with the Code.

13However, that does not mean that issues of systemic discrimination will go unresolved. Looking at the Code amendments as a whole, the Legislature appears to have addressed the issue of systemic discrimination in at least two ways. First, the Ontario Human Rights Commission has been given a specific statutory mandate to initiate applications in the public interest to seek remedies to promote compliance with the Code (section 35). Indeed, the Commission’s altered mandate including the removal of its responsibility to take carriage of individual applications of discrimination considerably frees up the Commission’s time and resources to focus on applications in the public interest.

14Second, a person or organization other that the Commission may potentially raise issues of systemic discrimination on behalf of others by filing a complaint under section 34(5), with the consent of the person or persons who have been affected.

15Having regard to the Code as a whole, section 34(11) was not intended to permit applicants to bring parallel actions in order to preserve their ability to obtain remedies to promote compliance with the Code.

Express Statutory Language

16The language of section 34(11) read literally would mean that unless an applicant specifically makes a claim in their civil action for a remedy under section 46.1 of the Code, a duplicate human rights application may proceed. In my view, such an interpretation would render section 34(11) meaningless and defeat the purpose of section 34(11), which is to avoid duplication of proceedings.

17I agree with approach taken in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10 with respect to the underlying purpose and rationale for this provision:

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.

18Declining to expressly seek a section 46.1 remedy, where the applicant has otherwise raised all the elements for an alleged breach of the Code does not prevent the application of section 34(11): Beaver, supra. .

Conclusion on Section 34(11)

19In this case, the applicant is making almost identical allegations of fact and raising the same issue of failure to accommodate under the Code and in the civil action.

20I find that, in effect, the applicant is claiming the equivalent of damages under section 46.1 of the Code in his civil action and therefore the Application is barred by s. 34(11) of the Code.

ORDER

21The Application is dismissed.