Tsehaye v. English District Lutheran Church-Missouri Synod, 2010 HRTO 1396

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Berhane Tsehaye on his own behalf and on behalf of Amleset Bennet, Temesgen Tirfe, Daniel Teklehaimanot, Janice Drews, Alice Greifengerger, Boffy Nyen, Ghebrelul Gime, Tekleab Schewai and Ariam Woldekristos

Applicants

-and-

English District Lutheran Church-Missouri Synod, David Stechholz, Jeffrey Miskus and Tom Steers

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: June 21, 2010

Citation: 2010 HRTO 1396

Indexed as: Tsehaye v. English District Lutheran Church-Missouri Synod

1This is an Application filed on August 5, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision deals with Requests for an Order During Proceedings filed by the respondents in which they seek dismissal of the Application under section 34(11) of the Code and, in the alternative, deferral pending the outcome of a civil proceeding. The respondents also sought the removal of the personal respondents from the Application but given my determinations below, it is unnecessary to deal with this request at this time.

3A prior Interim Decision, 2009 HRTO 1921, denied a request to dismiss the Application under section 34(11), but it concerned a different civil action than the one giving rise to the current request.

REQUEST TO DISMISS UNDER SECTION 34(11)

4The basis for the current request to dismiss is a Statement of Claim issued by three of the applicants on behalf of the rest of the applicants and others under the Class Proceedings Act, 1992, S.O. 1992, c. 6, on December 2, 2009. All of the respondents to this Application are defendants in the Class Action. The Class Action, as does this Application, arises out of the operation of a church and a dispute regarding who has control of the church building and the assets of the congregation. The Statement of Claim alleges that the defendants in effect improperly seized control of a local church from its members (which include the applicants), replacing the church council and seizing its assets. The Application alleges, among other things, that the applicants were expelled from the congregation on the basis of a number of grounds that are protected by the Code, including race, colour, ancestry and place of origin.

5The Statement of Claim seeks damages for “conversion of property, fraudulent misrepresentation, breach of fiduciary duty, infliction of mental suffering, interference with the right to worship and interference with corporate function” in the amount of $5 million, as well as punitive and/or aggravated damages in the amount of $1 million. The Application seeks as remedies, among other things, a declaration that the applicants are members of the church, apologies, an accounting of funds and training for the personal respondents on issues pertaining to discrimination.

6Section 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 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.

7In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at para. 6, the Tribunal described the operation of s. 34(11) as follows:

…if a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

8In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11 the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to apply:

Section 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.

To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

9The Tribunal has also determined that section 34(11) may bar an application regardless of whether the civil claim was commenced before or after the application: Borden v. Toronto Grace Health Centre, 2010 HRTO 1109.

10There is no doubt that there is a considerable overlap in the facts in the Class Action and those in the Application. Some of the issues raised by the applicants in both proceedings, such as whether the actions of the respondents were authorized by the church constitution, also overlap. However, the Class Action does not ask the court to make any findings about whether the actions were discriminatory, and does not seek remedies for discrimination.

11It may be that the applicants could have raised issues of discrimination under the Code in the court proceeding. But the Tribunal does not apply section 34(11) based on the availability of a court remedy for discrimination. While the Tribunal has warned against an overly technical interpretation of section 34(11), it has stressed that the purpose of this provision is to prevent an applicant from pursuing duplicate court and Tribunal proceedings which both raise issues of discrimination. In this case, although the events giving rise to both proceedings are largely the same, the applicants have not chosen to raise their claim of discrimination before the courts.

12I find, therefore, that the Application is not barred by section 34(11). In arriving at my conclusion, I find the facts of this case similar to those in Baker v. Sears Canada, 2009 HRTO 1793, in which the Tribunal found section 34(11) inapplicable. That decision is in my view more consistent with the Tribunal’s decisions in this area than Johnson v. General Motors of Canada, 2009 HRTO 2151, relied on by the respondents.

DEFERRAL

13In the alternative, the respondents request that the Application be deferred until the Class Action has been resolved.

14The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. It has stated that deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

15Deferral, however, is not automatically invoked simply because the parties are involved in other legal proceedings. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

16In this case, there are factors weighing in favour of deferral, as well as against. The applicants submit that there is currently no schedule for the steps to be taken in the civil action. In their submission, in light of the steps to be taken under the Class Proceedings Act, the civil case will not be heard on its merits for a very long time. These assertions are disputed by the respondents, who state that, in fact, the parties have agreed to move forward to the certification hearing as quickly as possible and have agreed to request the appointment of a case management judge to set a timetable for the required steps towards a certification hearing. Counsel for the respondents has provided correspondence on the civil action supporting these points.

17Although the timetable for the civil action is not certain, it does appear that the parties are fully engaged in taking steps to pursue it.

18The close relationship between the facts and issues in the two proceedings favours deferral. Although the Application is not barred under section 34(11), there is a public interest in avoiding the duplication of adjudicative proceedings hearing the same evidence and deciding some or all of the same issues. Not only would concurrent proceedings increase the burden on the parties, it raises the possibility of inconsistent findings of fact and law. The applicants submit that the risk of this is minimal, giving the uncertain timing of the civil claim. But balanced against this is the high degree of overlap between the two proceedings. In these circumstances, the orderly administration of justice favours allowing one proceeding to reach its conclusion before turning to the other.

19I therefore conclude that deferral of the Application is appropriate.

20In light of my decision to defer the Application, it is unnecessary to deal with the request for the removal of the personal respondents at this time. The Tribunal can address this issue, if necessary, should the Application be re-activated following the conclusion of the civil proceeding.

21The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the civil proceeding.

22I am not seized of this matter.