Hassell v. Parkdale United Church, 2009 HRTO 676

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desmond Hassell

Applicant

-and-

Parkdale United Church—Ottawa

Respondent

AND BETWEEN:

Desmond Hassell

Applicant

-and-

United Church of Canada Montreal & Ottawa Conference and

Ottawa Presbytery of the United Church of Canada

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: May 22, 2009

Citation: 2009 HRTO 676

Indexed as: Hassell v. Parkdale United Church

1This Interim Decision relates to two Applications filed on February 25, 2009 and February 27, 2009, respectively, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). Although the Tribunal is dealing with both Applications together for the purpose of this Interim Decision, it has not made any determination about whether they should be consolidated or otherwise dealt with together from this point forward.

2The Applications have not yet been delivered to the respondents because it appears that there may be issues which affect the Tribunal’s jurisdiction to deal with the merits of the Applications. On April 1, 2009, the Registrar issued a Notice of Intent to Dismiss the Applications on the basis that they appear to be outside the Tribunal’s jurisdiction. The Applications indicate that a civil court action has been commenced, which is based on the same facts giving rise to the present Applications. A copy of the statement of claim was filed with the Tribunal as part of the Application.

3Under the amended Code, which went into effect June 30, 2008, parties may, pursuant to section 46.1, seek damages for discrimination as part of a related civil action in the courts. Correspondingly, section 34(11) of the Code provides, in part:

(11) 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn….

4Given that the Applications indicated that a civil action had been commenced with respect to the same facts and against the same respondents, the Tribunal invited submissions from the applicant as to the Tribunal’s jurisdiction to continue to entertain the Application. On April 27, 2009, the Tribunal received correspondence from the applicant’s representative indicating that the applicant had instructed his counsel to immediately withdraw the civil action against the respondents. On April 30, 2009, the Tribunal received correspondence from the applicant’s civil lawyer, who advised that, on the instructions of his client, he filed a Notice of Discontinuance in the related civil proceeding. He further advised that the action is now barred by the applicable limitation period.

5It therefore appears to be unnecessary for me to decide whether section 34(11) of the Code applies in the light of the discontinuance of the civil proceeding.

6The Registrar shall deliver the Applications to the respondents and continue to deal with the Applications.

7I am not seized of this matter.