HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kevin Einig
Applicant
-and-
Na-Me-Res Shelter
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Einig v. Na-Me-Res Shelter
WRITTEN SUBMISSIONS
Kevin Einig, Applicant ) Self-represented
1This Application was filed on October 22, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The Application alleges discrimination in the provision of goods, services, and facilities on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin, creed, sex, sexual solicitation, sexual orientation, family status, marital status, association with a person identified by a ground under the Code and reprisal.
2The applicant attached with his Application a Statement of Claim filed with the Ontario Superior Court of Justice (a file number has been assigned) dated March 22, 2010. As a result, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant dated November 22, 2010. In the NOID, the Tribunal states that it appears that the Application is outside the Tribunal’s jurisdiction because the applicant has commenced a civil proceeding in a court with respect to the allegations raised in the Application, and that as a consequence the Application is barred by section 34(11) of Code.
3The Tribunal invited the applicant to respond to the NOID within 14 days. The applicant has provided written submissions.
4The applicant submits that his Statement of Claim is in relation to an employment issue and as such is not related to his Application which is in relation to the services provided by the respondent and the harassment experienced by the applicant from fellow residents living in the respondent’s shelter. He describes the claim as a “wrongful employment dismissal case”. The applicant further submits that he has not set a court hearing date as yet and is intending to do so only if his Application before the Tribunal is unsuccessful. The applicant states that,
If after I am heard the Tribunal is able to get the Respondent to meet my demands I will take no further action. If, on the other hand, the respondent refuses to meet my demands, I will proceed to set a court date in Ontario Superior Court.
ANALYSIS
5Section 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.
6Section 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:
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.
7I have reviewed the applicant’s Statement of Claim in relation to his civil proceeding and his Application. I am satisfied, despite the applicant’s submissions, that they overlap significantly and that the civil action raises many of the same incidents, issues and allegations of discrimination raised in the Application. The Statement of Claim does raise concerns about how the respondent’s staff treated him, including in relation to employment related counselling and providing him with suitable employment opportunities.
8Importantly, the Statement of Claim goes on, at great length, to raise concerns about the applicant having received differential treatment by respondent staff and being subject to harassment by other residents on grounds covered under the Code (for example, paragraphs 2, 6, 11, 14 and 16 of the Statement of Claim). Similarly, the Application raises concerns about differential treatment by respondent staff and harassment by other residents on grounds covered under the Code and refers to many of the same issues of concern raised in the Statement of Claim, including issues of discrimination (for example, paragraphs 4, 5, 10, 16, 24 of the Application). The Application also refers to issues the applicant has had with employment assignments given to him by respondent staff (for example, paragraphs 6 and 7 of the “Facts” section of the Application).
9It should be noted that there are a large number of allegations raised by the applicant in his Application that are not clearly linked to a ground under the Code. It should be further noted that the Statement of Claim does not specifically refer to the Code or that the respondent has violated the Code.
10In 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.
11In my view, the applicant’s civil action does, in effect, allege that the respondent has 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).
12In 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.
13The applicant’s statements indicating a desire to hold his Statement of Claim in abeyance pending the outcome of his Application and an intention to proceed with his civil claim if he does not get the result he wants from his proceeding before the Tribunal provides further evidence that the Statement of Claim and the Application are linked and overlap. To allow the applicant to proceed in this fashion would violate the principle underlying section 34(11) cited above, which is to eliminate duplicate court and Tribunal proceedings.
14Given that the facts and issues raised in the applicant’s civil action include many of those raised in the Application, I find that the Application is barred by section 34(11) of the Code and is dismissed.
Dated at Toronto, this 3rd day of December, 2010
”signed by”_____________
Eric Whist
Vice-chair