HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kandarp Vyas
Applicant
-and-
Nishnawbe-Aski Police Service
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed as: Vyas v. Nishnawbe-Aski Police Service
WRITTEN SUBMISSIONS
Kandarp Vyas, Applicant ) Self-represented
Nishnawbe-Aski Police Service, ) Etienne Esquega, Counsel
Respondent )
BACKGROUND
1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 20, 2010 alleging discrimination in employment on the basis of race, colour, place of origin and ethnic origin. Along with his Application, the applicant submitted a copy of a Statement of Claim filed against the respondent.
2On March 7, 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 a civil proceeding has been commenced seeking an order with respect to the alleged Code infringement. The Tribunal invited the applicant to file written submissions in this regard.
3The applicant filed submissions on April 1, 2011 with respect to the issue of section 34(11). The applicant argued that his Application should be permitted to proceed concurrently with his civil action because the claims are distinct in that the civil suit alleges wrongful dismissal and misrepresentation.
4By way of Case Assessment Direction dated May 4, 2011, the Tribunal directed the parties to file written submissions regarding the Tribunal’s jurisdiction over this Application because it appeared the subject-matter of the Application may be within exclusive federal jurisdiction and not within jurisdiction of this Tribunal. The Application pertains to the applicant’s employment with the respondent, a First Nations police service, and notes concerns involving the Public Service Alliance of Canada.
5The parties filed submissions and accompanying materials, which indicate that the applicant also filed a complaint with the Canadian Human Rights Commission (“CHRC”). It appears that, as of May 2011, the CHRC is in the process of considering whether or not it has jurisdiction over the complaint.
SECTION 34(11) DECISION
6Section 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.
7Section 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.
8Section 34(11) bars an application from proceeding in situations where the applicant has commenced a civil suit based on the same facts and allegations and seeking similar remedies.
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. Section34(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.
11The Application alleges that, while employed for the respondent, the applicant was subjected to discrimination and harassment in various ways, such as being forced to pay union dues; being subjected to remarks about his background; being denied the opportunity to be featured in the respondent’s financial report; and being subjected to unfair terms and conditions in his employment contract.
12The applicant filed a Statement of Claim against the respondent claiming a variety of wrongdoing by the respondent, including the above-noted allegations. The Statement of Claim expressly states that the applicant was subject to harassment and discrimination. The Statement of Claim seeks damages for wrongful dismissal, breach of contract and misrepresentation, as well as damages for the violation of the applicant’s rights to natural justice and human rights.
13I 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 does reference alleged discrimination and harassment contrary the applicant’s human rights and clearly deals with the same events that are alleged to constitute discrimination and harassment in the Application. Further, similar remedial compensation is sought in both documents, including for alleged human rights violations.
14If 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.
15In light of my findings with respect to section 34(11) of the Code, it is unnecessary for me to consider the issue of federal jurisdiction.
16Accordingly, the Application is dismissed.
Dated at Toronto, this 14th day of June, 2011.
“Signed By”
___________________________________
Ena Chadha
Vice-chair