Hussin v. St. Michael’s Hospital, 2010 HRTO 1660

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clifford Hussin Applicant

-and-

St. Michael’s Hospital, Damir Kapetanovic and Robert Laforest Respondents

DECISION

Adjudicator: Eric Whist Date: August 10, 2010 Citation: 2010 HRTO 1660 Indexed as: Hussin v. St. Michael’s Hospital

1This Application was filed on January 27, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c.H. 19, as amended (the “Code”). The applicant alleges that St. Michael’s Hospital (the “corporate respondent”), and Robert Laforest and Damir Kapetanovic (the “personal respondents”) discriminated against him in the provision of goods, services, and facilities on the basis of race, ancestry, ethnic origin and creed. Specifically, the applicant alleges that the personal respondents, a security supervisor and a security guard employed by the corporate respondent, subjected him and a companion to racial epithets and physical attacks on February 4, 2009.

2In their Responses to the Application, the personal respondents ask that the Application be deferred on the basis that a civil claim based on the same events has been made by the applicant. In its Response, the corporate respondent requests that the Application be dismissed on the basis that a civil action based on the same facts as the Application has been made and that as a consequence the Application is barred by section 34(11) of Code.

3In a Notice dated July 14, 2010, the Tribunal invited the applicant to respond within 14 days to the respondents’ requests to defer and dismiss. The Tribunal has not received submissions from the applicant.

ANALYSIS

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 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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 46.1 explicitly gives the civil courts the authority to order remedies for human rights infringements:

46.1(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.

6I have reviewed the applicant’s Statement of Claim related to his civil action and his Application. I am satisfied that they are both based on the same incidents and facts. The defendants named in the Statement of Claim are the three respondents. While the Statement of Claim makes no explicit reference to the Code or a Code violation, it alleges that racial epithets were made by the personal respondents during incidents on February 4, 2009 and that they engaged in racial profiling. The Statement of Claim contends that the corporate respondent is accountable for the actions of these employees. The Statement of Claim seeks general damages from the corporate respondent on the grounds that it was vicariously liable for the actions of the personal respondents and that it was negligent or engaged in wilful conduct when it, amongst other things, failed to have policies in place to prohibit racial discrimination, failed to enforce these policies and knew or ought to have known of the discriminatory practices of the personal respondents.

7In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, the Tribunal stated 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 my view, the applicant’s civil action, in effect, alleges that the respondents have violated the Code and seeks remedies with respect to these alleged Code infringements. The fact that the Code is not specifically referred to in the Statement of Claim and section 46.1 of the Code has not been specifically pleaded does not preclude a finding that the Application falls within the scope of section 34(11).

9In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, 2008 HRTO 282, at paragraphs 10 and 11, the Tribunal discussed the following principles applicable to the interpretation of s. 34(11):

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.

10I find that, in the present case, the facts and issues raised in the civil action include those raised in the Application and that the damages being claimed in the civil action include claims for infringements of the Code. As a consequence, the Application is barred by section 34(11) and dismissed.

11I do note that the applicant filed his Application with the Tribunal two days prior to commencing his civil claim. This timing is not an issue. The Tribunal, in Borden v. Toronto Grace Health Centre, 2010 HRTO 1109 makes clear that section 34(11) applies to bar an application from proceeding where a civil action has been commenced both after and before the application.