Kupiec v. Starburst Coin Machines, 2009 HRTO 75

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Kupiec

Applicant

-and-

Starburst Coin Machines Inc. and Len Keywood

Respondents

DECISION

Adjudicator: Lorne Slotnick

Date: January 22, 2009

Citation: 2009 HRTO 75

Indexed as: Kupiec v. Starburst Coin Machines

WRITTEN SUBMISSIONS BY:

Mark Kupiec, Applicant ) Ernest Coetzee, Counsel

Starburst Coin Machines Inc. ) Megan Wright, Counsel

and Len Keywood, )

Respondents )

1This Decision deals with a request by the responding parties to dismiss the Application because of a concurrent civil court action claiming damages under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal received written submissions on this issue from both parties.

2The Application arises from the termination of the applicant’s employment with the corporate respondent in July 2007. The applicant filed a complaint with the Ontario Human Rights Commission in October 2007, alleging discrimination in employment on the basis of disability. Approximately two months later, in December 2007, the applicant began a civil action in the Superior Court of Justice against the responding parties in the human rights complaint, claiming damages for wrongful dismissal and also claiming damages for breach of the Code.

3Changes to the Code that took effect on June 30, 2008, gave complainants the option of abandoning existing complaints at the Commission and making an application based on the same subject-matter at the Tribunal. The applicant chose to do this and filed this Application.

4The responding parties filed a full Response, including a request that the Application be dismissed because of section 34(11) of the Code, which states:

Where application barred

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

5This subsection makes reference to subsection (1), which is the section providing for applications to the Tribunal, and section 46.1, which gives a civil court that finds a violation of the Code the power to order compensation and restitution to the person whose rights were infringed.

6In a brief decision, Kupiec v. Starburst Coin Machines, 2008 HRTO 257, the Tribunal requested written submissions on whether the Application is barred because of section 34(11).

7There is no dispute the applicant’s civil action and his Application to this Tribunal cover the same subject matter, and that the civil action has not been withdrawn, settled, or determined. The remedies sought differ somewhat, however, in that the Application seeks reinstatement to his position with the corporate respondent in addition to damages, and the civil action does not.

8The applicant says he applied to the Tribunal to ensure his human rights dispute would move forward as quickly as possible. He concedes that section 34(11) “may arguably apply” to the Application. However, he argues, because the initial complaint was filed before the changes to the Code took effect, and because the current Application is simply a continuation of that complaint, the Application should not be barred by section 34(11).

9The responding parties argue that all the factors barring an application contained in section 34(11)(a) are present in this situation: a civil proceeding has been commenced in a court in which the applicant is seeking damages for a breach of his human rights and that proceeding has not been finally determined or withdrawn.

10The responding parties argue that section 34(11)(a) applies to both transition applications – those initially filed as complaints with the Commission – and to new applications filed directly with the Tribunal after the changes to the Code took effect. This view, the responding parties argue, is confirmed by section 53(6) of the Code, which says that the new Part IV – which contains the bar in section 34(11) – applies to transition applications made under section 53(3).

11In my view, the responding parties are correct in their submission that section 53(6) answers the question of whether Mr. Kupiec’s Application is barred. That section confirms that “the new Part IV applies to an application made under subsections (3) and (5).” The Application in this case is one made under subsection (3). Therefore, the new Part IV, including section 34(11)(a),applies and bars an application where, as here, a civil proceeding has been commenced seeking an order compensating the plaintiff for infringement of his human rights, and that proceeding has not been withdrawn.

12The applicant says, as an alternative, that if the Tribunal agrees with the responding parties that section 34(11) applies here, he will undertake to withdraw any portions of the civil action that offend the section so that his Tribunal Application can proceed and he can pursue those remedies that may be available from the Tribunal and not from the court. The responding parties reply that the Code provisions do not allow for a withdrawal of a court action after an application has been made to the Tribunal, and that as long as a civil action that contains a human rights claim is still proceeding, the Tribunal application is barred.

13Under the revisions to the Code, the courts were given clear jurisdiction to determine claims of human rights violations when those claims are part of a broader action, such as for wrongful dismissal (see section 46.2 of the Code). However, the person claiming infringement of human rights must make a choice on whether to put that allegation before the courts or before this Tribunal. The remedies available in each forum are just one of many factors that will influence that choice. However, once a person claiming infringement has commenced a civil action claiming damages for the alleged human rights violation, that person has made a choice and section 34(11) of the Code is clear in stating that the person cannot then proceed with a complaint to this Tribunal unless he or she has first withdrawn the civil action. The legislation does not contemplate withdrawal of a portion of a civil action only after a responding party objects, as is the case here. On the contrary, it compels the applicant to make a decision on where to seek redress for alleged human rights violations before filing an application with the Tribunal. In the circumstances here, as long as the civil action was not withdrawn or amended prior to making the application, the application to the Tribunal will be barred.

ORDER

14This Application is barred by section 34(11)(a) of the Code.