Michael Palangio v. The Corporation of the Town of Cochrane, Lawrence Martin, Pierre Demers and Rheal Cousineau, 2010 HRTO 197

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Palangio

Applicant

-and-

The Corporation of the Town of Cochrane, Lawrence Martin, Pierre Demers and Rheal Cousineau

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 28, 2010

Citation: 2010 HRTO 197

Indexed as: Palangio v. Cochrane (Town)

WRITTEN SUBMISSIONS BY

Michael Palangio, Applicant ) On his own behalf

The Corporation of the Town of Cochrane, ) Lawrence Martin, Pierre Demers, and ) David L. Lanthier, Counsel Rheal Cousineau, Respondents )

1This Interim Decision addresses whether the present Application is barred by section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The complaint filed with the Ontario Human Rights Commission on April 3, 20067 and abandoned upon filing the present Application, alleges that the respondents discriminated on the basis of disability when they refused to permit the applicant to record Council Chambers Town Hall meeting on February 17, 2006 as a form of accommodation for his hearing disability. The respondents assert that the applicant’s hearing limitations do not require him to record the meeting and that the applicant was attempting to surreptitiously tape record the meeting for ulterior purposes.

3The respondents also assert a prior civil action between the parties raised the above issues and was resolved between the parties.

STATUTORY PROVISIONS

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

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.

ANALYSIS

6I have reviewed the pleadings filed by the respondents. The respondent City filed a statement of claim against the applicant in 2003 alleging that the applicant had breached his duties as a holder of the office of Commissioner of the Cochrane Public Utilities Commission and the office of Municipal Councillor. The allegations relate to events prior to the 2003 statement of claim. Neither the statement of claim nor the statement of defence with counterclaim by the applicant against the City raise the issue of recording council meetings. On December 8, 2006, the court dismissed a motion by the City for summary judgment and the parties subsequently settled the claim and counterclaim.

7I see nothing in the pleadings that would indicate that the issue of tape recording Council meetings was raised as an issue and subsequently settled.

8Therefore, the request to bar the Application under section 34(11) is dismissed.

9The respondents also assert that the release signed by the applicant with respect to the above actions also bars the present Application. I have reviewed the release and the letters exchanged by counsel leading up to the settlement, as submitted by the applicant. They indicate considerable resistance by the applicant to releasing his right to pursue the human rights complaint and the release does not specifically mention it.

10Rather the release purported to release the respondents from all claims raised by the civil claim and counterclaim.

11In the result, I find that the Application is not barred by s. 34(11) of the Code.

12The Registrar-Transition will contact the parties to schedule a date for a hearing.

13The counsel for the respondents has asked the applicant to deliver all materials to each of the personal respondents. Generally, when a party is represented by counsel, it is considered sufficient to deliver written materials to the counsel of record.

14I am not seized of this matter.