Venkat Milligan v. Toronto Jail, 2009 HRTO 308

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

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: March 17, 2009

Citation: 2009 HRTO 308

Indexed as: Milligan v. Toronto Jail

INTroduction

1These Applications were filed January 28, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Interim Decision is to determine whether these Applications are barred by section 34(11) of the Code.

2The Applications are identical except that one names the Toronto Jail as the respondent and the other names Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services. The Applications will be processed together.

3The Applications allege that the respondents discriminated against the applicant on the basis of disability and record of offences while he was in the Toronto Jail from October 2007 to December 2007.

4On January 23, 2008, counsel for the applicant wrote to the Ministry of the Attorney General providing formal notice to the Ministry under the Proceedings against the Crown Act that a civil action may be pursued against in respect of the applicant’s treatment in the Toronto Jail from October 2007 to December 2007. A draft statement of claim was attached.

5The respondents filed a Request for an Order that the Tribunal’s jurisdiction is ousted by section 34(11). The applicant submitted the statement of claim had not yet been filed and therefore section 34(11) did not apply. He also alleged that he was not seeking a remedy for a breach of the Code in the manner contemplated by section 46.1 and therefore section 34(11) would not apply in any case.

6Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

7In my view, the respondents’ request is premature. The applicant has not yet commenced a civil proceeding within the meaning of section 34(11)(a) and therefore there is no bar to the Application.

8If a statement of claim is filed, the respondents may renew the Request.

9The Request is dismissed. The respondents are directed to deliver and file their Responses (Form TR-2) within 35 days of the date of this Interim Decision.