Hickey v. 1437470 Ontario Limited, 2009 HRTO 722

Human Rights Tribunal of Ontario

B E T W E E N:

Patricia Hickey

Applicant

-and-

1437470 Ontario Limited o/a Petro-Pass, Ali Abbas and Wijdan Karim

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: May 29, 2009

Citation: 2009 HRTO 722

Indexed as: Hickey v. 1437470 Ontario

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on February 18, 2009. The applicant alleges she was discriminated against by the respondents in the context of her employment on the basis of her race, place of origin and ethnic origin.

2In their Response, filed on March 31, 2009, the respondents asked that the Tribunal dismiss the Application pursuant to s. 34(11) of the Code. The respondents contended that a claim based on the same facts as the Application had been filed in civil court in which the applicant was requesting a remedy based on the alleged human rights violation.

3In an Interim Decision, 2009 HRTO 481, the Tribunal sought written submissions from the parties regarding the Request to dismiss. The parties provided their submissions and included documents indicating that a request for clerk’s order (signed by both parties) was filed with the Small Claims Court on May 5, 2009, consenting to the dismissal of the applicant’s small claims court action.

4According to s. 34(11) of the Code:

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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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5Section 34(11) of the Code does not bar an application from proceeding where a related civil proceeding has been withdrawn. In this case, the applicant is seeking (and the respondents have consented) to the dismissal of the civil proceeding without a final determination by the civil court on the merits of the claim.

6It appears that the Small Claims Court has not yet responded to the parties’ request for a clerk’s order. Although the civil proceeding has not been formally dismissed, it is clear that the applicant is no longer seeking an order under s. 46.1 of the Code.

7Once it has been issued, the applicant is directed to file with the Tribunal a copy of the Small Claims Court’s response to the request for a clerk’s order.

8In the meantime, since both parties have agreed to attend a mediation, the Registrar will schedule a mediation date.

9I am not seized of this matter.