HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Omar Hassan
Applicant
-and-
London Police Services Board, Brent Anderson, Chris McCoy, Kevin Heslop, Natasha Wright, Nathan Campbell and Paul Gedies
Respondents
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Hassan v. London Police Services Board
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”), as well as its request to defer this Application pending the completion of the arbitration of the grievance based on the same facts.
2The applicant filed this Application, dated November 12, 2009, under s. 34 of the Code, alleging discrimination in the provision of services on the basis of race, colour, ancestry, place of origin and ethnic origin. The applicant, who is a police officer employed by the London Police Service Board (the Board), was off-duty at the time the police were called to do a noise investigation at a hotel in the area. He alleges he was subjected to racial profiling that evening and subjected to an internal investigation by his employer as a result. He was advised that the finding of this investigation showed that he was mistakenly identified as the person of interest.
3In addition to filing an Application, he instituted a civil action on October 23, 2009. The London Police Association filed a grievance on his behalf on September 8, 2009.
DISMISSAL REQUEST
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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:
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.
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 respondents argue that the Application should be dismissed as it requests a remedy based on the same facts as the civil claim. A comparison of the Application and the Statement of Claim show that the facts are, indeed, in essence the same.
8However, what is notable is that the Application is framed as a breach of the applicant’s right to be free from discrimination in the area of services, while the civil action is based on constructive dismissal (i.e., with respect to his employment). Indeed, while the facts set out in both the claim and the Application commence with the night of the police visit to the hotel (December 21, 2008) and conclude with events taking place in the applicant’s workplace in 2009, when asked in the Application the date of the last event, he states it is December 21, 2008. The damages sought for the civil action are monetary, while the damages sought in the Application are largely of a public interest nature.
9As noted above, the intent of s. 34(1) is to prevent duplicative proceedings. While it is arguable that the civil claim meets the technical requirements of s. 34(11) (i.e., the civil claim alleges an infringement of the applicant’s rights under the Code, and the applicant is seeking an order under section 46.1 as part of his remedy in that claim), it would appear that the applicant has been careful to not bring duplicative proceedings. On the basis of the differences in the two proceedings, I conclude that this Application is not barred by operation of subsection 34(11). Accordingly, the respondent’s request for dismissal on this basis is denied.
DEFERRAL
10In their Response, the respondents argue, in the alternative, that the Application should be deferred pending the outcome of the grievance brought on the applicant’s behalf. The Tribunal sent a letter following receipt of the Response asking the applicant to respond to the request to dismiss, but making no mention of the alternative request to defer. The applicant made submissions on the basis of the Tribunal’s letter and has not made specific submissions on the deferral request. Prior to a decision being made, the applicant will be given the opportunity to make written submissions on the basis of the timetable set out below.
11The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
12The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In this case, there is the unusual difference in that the Application is not based on an alleged breach of the applicant’s right to be free from discrimination in employment. However, it would appear that many of the factual allegations are the same, and the arbitrator may make key findings of fact with respect to the events of December 21, 2008 that will be of relevance to this Tribunal.
13The applicant submitted a copy of the court’s decision staying his civil claim pending the decision of the arbitrator on the grievance. In that decision the Judge states that the arbitration was scheduled to go before the Board on March 2, 2010. The parties should advise in their submissions the current status of the grievance process.
14Accordingly, the applicant will have two weeks from the date of this Interim Decision to serve on the respondents and file with the Tribunal a written response to the respondents’ request to defer. The respondents may serve and file any written submissions in response to the applicant’s submissions within one week of receipt of them.
15I am not seized of this matter.
Dated at Toronto, this 14th day of June, 2010.
“signed by”
Naomi Overend
Vice-chair