HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marcel Stevenson
Applicant
-and-
The Regional Municipality of York Police Services Board, Arden Guler and David Laus
Respondents
RECONSIDERATION DECISION
Adjudicator: Kaye Joachim
Indexed as: Stevenson v. Regional Municipality of York Police Services Board
WRITTEN SUBMISSIONS BY
Marcel Stevenson, Applicant ) Sylvia Samuel ) Counsel
1This Decision addresses a Request for reconsideration of the Tribunal’s Decision 2009 HRTO 1711 dated October 20, 2009 dismissing the Application on the basis that the Application was barred by section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).
2On November 20, 2009, the applicant filed a Request for Reconsideration under section 45.7 of the Code.
45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
3Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).
4The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
5As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
6The complaint filed with the Ontario Human Rights Commission on August 23, 2006 and abandoned upon filing the present Application, alleges that the respondents discriminated against him in the provision of police services the basis of colour and creed.
7In April 2008 the applicant filed an amended Statement of Claim against the respondents and others, alleging malicious prosecution, abuse of legal process, false imprisonment, assault battery and breach of Charter rights. The facts in both the human rights complaint and the civil action relate to events that occurred in March 2006. In both, the applicant alleges that he was called racial names. In the civil action he claimed breach of his human rights and Charter rights.
STATUTORY PROVISIONS
8Section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (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.
9Section 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:
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.
ANALYSIS
10The applicant submitted that I overstated the implications of the case of Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10:
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.
11In Beaver, the applicant had filed both a human rights complaint and a wrongful dismissal action, specifically alleging a breach of the Code, although not specifically seeking s. 46.1 damages. In that sense, Beaver is distinguishable from the present case as the applicant has been careful to refrain from any mention of the Code. However, the applicant had sought bad faith, punitive and exemplary damages for the alleged discrimination and the Tribunal found that in effect, this was a claim for damages for breach of the Code (paragraph 11).
12The applicant urged me to adopt instead the approach taken in Baker v. Sears Canada Inc., 2009 HRTO 1014, at paragraph 7:
The threshold question is whether the applicant did in fact decide to raise the Code and seek remedies for alleged breaches by way of a court action. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section 34(11). If not, however, then the factual similarity between the two pieces of litigation is irrelevant to the question of the Tribunal’s jurisdiction to consider the matter. Similarly, any prejudice alleged by the respondents is immaterial to the jurisdictional question. The Tribunal either has jurisdiction to consider a matter or it does not.
13In Baker the applicant also filed a human rights application alleging harassment and discrimination on the basis of disability and reprisal in the form of termination after she complained. In her wrongful dismissal action, many of the same factual assertions were made, but the applicant did not assert any disability, which would have precluded a claim for damages for breach of her Code rights (paragraph 9 of Baker).
14Baker is distinguishable from the present application as the applicant has specifically raised the racial slurs in both actions which could result in a finding that the actions of the defendants in the civil action discriminated against the applicant. Notwithstanding the decision not to specifically plead the Code, the factual basis set out in the civil action could attract a remedy for that discrimination.
15Section 34 of the Code requires an applicant/plaintiff to make a choice. File a civil action that includes the alleged Code breach or file a human rights application.
16Section 34 is intended to preclude the duplication of litigation entailed in maintaining two proceedings involving the same factual situation where both proceedings could give rise to a remedy for discrimination. Whether or not a breach of the Code is specifically pleaded is irrelevant: see also Cornell v. Simcoe Parts Services, 2009 HRTO 1932, and Milligan v. Toronto Jail, 2009 HRTO 2200.
17In the result, I find that the Application is barred by s. 34(11) of the Code. The Reconsideration Request is therefore dismissed.
Dated at Toronto, this 12th day of January, 2010.
“Signed by”
Kaye Joachim
Alternate Chair