Bhikram v. Toronto City Police Force and Sheila Richardson, 2011 HRTO 1014

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Udhbirprasaud Joseph Bhikram

Applicant

-and-

Toronto City Police Force and Sheila Richardson

Respondent

DECISION

Adjudicator: Ena Chadha

Date: May 27, 2011

Citation: 2011 HRTO 1014

Indexed as: Bhikram v. Toronto City Police Force and Sheila Richardson

INTRODUCTION

1This Decision deals with an Application filed on January 28, 2011 under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination with respect to services, goods and facilities because of race, colour, ancestry, place of origin, ethnic origin, disability and creed. The Application included a Statement of Claim alleging concerns with respect to police treatment, including alleged racist conduct and failure to accommodate his disability.

2On March 16, 2011, the Tribunal issued a Notice of Intent to Dismiss (“Notice”) indicating that the Application appeared to be outside of the Tribunal’s jurisdiction, pursuant to section 34(11) of the Code, because there is a concurrent civil proceeding seeking an order with respect to the alleged Code infringement. The Notice also indicated that the Application appeared to be outside of the Tribunal’s jurisdiction because it appeared to have been filed more than one year after the last incident of discrimination.

3On April 7, 2011, the applicant wrote to the Tribunal indicating the reasons for his delay in filing the Application. The applicant did not address the issue of a civil proceeding and section 34(11) of the Code.

DECISION

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

6Section 34(11) bars an application from proceeding in situation where the applicant has commenced a civil suit based on the same facts and allegations and seeking similar remedies.

7Based on a review of his Statement of Claim, it appears that the applicant alleges that he was subjected to discrimination, harassment and denied appropriate accommodation by the respondents. The Statement of Claim is also against the same institutional respondent. The Statement of Claim specifically cites section 15 of the Canadian Charter of Rights and Freedom (right to equal protection and benefit of the law without discrimination) and seeks damages for the alleged infringement of the applicant’s Charter rights.

8In his Application, the applicant relies on the same events as alleged in his civil suit and seeks $1,000,000.00 in damages. The Application alleges that the respondents subjected the applicant to discrimination, harassment and abuse.

9Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11 the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to apply:

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.

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.

11I am satisfied that the applicant’s Statement of Claim and this Application are based on the same facts, both assert human rights allegations and seek remedies for human rights violations. While the Statement of Claim makes no explicit reference to the Code, it is clear that the Statement of Claim allegations concern the same events that are alleged to constitute discrimination, harassment and failure to accommodate as alleged in the Application. Further, similar remedial compensation is sought in both documents.

12If an application falls within the circumstances described in section 34(11), the Tribunal is precluded from proceeding with the application because the language in section 34(11) is a mandatory bar. Given that the Statement of Claim and Application both assert human rights allegations and seek human right damages, the Tribunal has no jurisdiction over this Application. The overlap present in the civil proceeding and the Application is exactly what section 34(11) was intended to prevent.

13Accordingly, the Application is dismissed.