Coldin v. Ontario Provincial Police, 2010 HRTO 1125

Human Rights Tribunal of Ontario

B E T W E E N:

Brian Coldin Applicant

-and-

Ontario Provincial Police Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: May 19, 2010 Citation: 2010 HRTO 1125 Indexed as: Coldin v. Ontario Provincial Police

1The purpose of this Interim Decision is to address the respondent’s request for an early dismissal of the Application on the basis that it is barred by subsection 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant filed this Application, dated November 28, 2009, under s. 34 of the Code, alleging discrimination and reprisal in the provision of services on the basis of creed. The applicant self-identifies as a Christian Naturist. In his Application, he alleges that he was charged with public nudity by the respondent on September 28, 2008, and in October 2009, and arrested for a number of “fabricated charges” on May 15, 2009. He also makes reference to numerous other arrests that occurred previously, but does not particularize them.

3In February 2005, the applicant initiated a civil claim, naming a number of defendants, including the respondent. The claim against the respondent and several of its officers was for malicious prosecution. At some point in the proceeding, the civil claim was discontinued against the respondent, but maintained against the individual OPP defendants. That civil matter is ongoing.

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

5Section 46.1 of the Code provides:

(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.

6Section 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. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at para. 10.

7The respondent argues that the “pith and substance” of the Application concerns the fact that the applicant continues to be subject to wrongful prosecution, which is also the basis for the civil claim against the individual OPP defendants.

8The applicant argues that he did not become a Christian Naturist until the summer of 2005, after the civil suit had been commenced, and it was not until the summer of 2007 that the police started threatening to charge him with nudity. The applicant states that he believes the charges filed by the police in recent years are motivated in part by a desire to prevent him from practising his Christian Naturist beliefs.

9The civil claim does not allege an infringement of the applicant’s rights under the Code, nor does it appear to seek an order under section 46.1. On the basis of the information before me, I am not able to conclude that this Application is barred by operation of subsection 34(11). Accordingly, the respondent’s request for dismissal on this basis is denied.

10The respondent has 20 days from the date of this Interim Decision to file a full Response.

11I am not seized of this matter.