HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Steve O’Brien
Applicant
-and-
The Ottawa Mission
Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: O’Brien v. Ottawa Mission
1This is an Application filed on July 21, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal issued a Notice of Intent to Dismiss on January 14, 2010, following which submissions were received from the applicant.
2An Interim Decision was issued, 2010 HRTO 1033, in which the Tribunal ruled that on the face of the materials before it which, at that stage, comprised only of the applicant’s submissions, it was not plain and obvious that the Application was barred on the basis of a civil claim filed by the applicant. The Tribunal directed that the Application be served and further directed the respondent to address the question of whether s. 34(11) applies to this Application.
3The respondent has done so and seeks dismissal of this Application. It argues that the Application is barred by virtue of s. 34(11)(b) of the Code, which reads as follows:
34(11) 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
4Having reviewed the materials filed by both parties, I find that one of the civil claims filed by the applicant (No. 09-SC-108199) involves the same parties, concerns the applicant’s alleged eviction and the meeting between the parties held on March 9, 2009. The applicant alleges a violation of the Code in the civil pleadings, relies on the same facts in both proceedings and makes the following statement:
I realize that by bringing up Human Rights issues here means that I cannot use the same facts or evidence to file a separate complaint before that Tribunal.
5The parties appear to have been given an opportunity to file written materials and attend an oral hearing. The civil claim was dismissed following the hearing. The applicant then filed an appeal to Divisional Court, which was dismissed for delay. That dismissal by the Registrar was challenged by way of a motion brought by the applicant. The respondent has provided copies of Mr. Justice Rutherford’s endorsement of June 4, 2010, and his Order dated June 21, 2010, in which he rules against the applicant’s motion and states:
This motion and any further proceedings in the Court File are stayed. Any further step in it will require leave of a judge of the Superior Court of Justice to proceed.
6The applicant suggests that the court has not finally determined the issue because indicates he has served the respondent’s counsel with a Notice of Appeal seeking to overturn the June 21, 2010 Order and that the Order may be appealed as of right.
7The respondent has filed a brief reply in which it points out that Mr. Justice Rutherford was sitting as a single judge of the Divisional Court concerning an appeal of a decision of the Ottawa Small Claims Court and that s. 6(1)(a) of the Courts of Justice Act provides that the applicant must seek leave to appeal the Order in question. It points out that the applicant had 15 days to do so, no motion for leave to appeal has been filed and the time for doing so has long expired.
8.As the Tribunal held in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282:
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.
9Having reviewed the materials filed, I am satisfied that this Application is barred by virtue of s. 34(11)(b).
10The Application is dismissed.
Dated at Toronto, this 29th day of December, 2010.
“Signed by”
Jay Sengupta
Vice-chair