Mahmoudi v. The Regional Municipality of York Police Service, 2011 HRTO 1710

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lyla Mahmoudi

Applicant

-and-

The Regional Municipality of York Police Services, Kimberly Pearce and Peter Heard

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: September 16, 2011

Citation: 2011 HRTO 1710

Indexed as: Mahmoudi v. The Regional Municipality of York Police Service

1The purpose of this Interim Decision is to address the respondents’ request for an early dismissal of the Application on the basis that it is barred by subsection 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), as well as its request to defer this Application pending the completion of the applicant’s civil proceeding.

2The applicant filed her Application to the Tribunal on August 9, 2010 alleging discrimination in the provision of services on the basis of race, colour and place of origin concerning the manner in which the respondents treated her and her son during her arrest and subsequent release.

3In addition to filing an Application, the applicant instituted a civil action on July 22, 2010 alleging negligence. She also filed a complaint to the “Human Rights Commission York Region,” which was forwarded to the respondent police force to investigate, on October 21, 2009. The applicant requested the Ontario Civilian Police Commission to review a decision of the respondent police force in May or June 2010.

DISMISSAL REQUEST UNDER SECTION 34(11)

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

5Section 46.1 of the Code provides:

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.

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) 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. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10.

7The respondents argue that the Application should be dismissed as it requests a remedy based on the same facts as the civil claim. A comparison of the Application and the Statement of Claim show that the facts with respect to the arrest portion of the Application clearly overlap, but that the applicant does not raise the remark that was allegedly made to her at the police station upon her release.

8Moreover, the Application is framed as a breach of the applicant’s right to be free from discrimination in the area of services, while the civil action pleads assault, battery and negligence. While there is a reference to the Canadian Charter of Rights and Freedoms in the Statement of Claim, there no specific allegation that the applicant’s equality rights were violated.

9As noted above, the intent of s. 34(11) is to prevent duplicative proceedings. On the basis of the above-noted differences in the two pleadings, I cannot conclude that the applicant has brought duplicative proceedings or that she is seeking a remedy for the breach of her Code rights in the civil proceeding. Accordingly, this Application is not barred by operation of s.34(11) of the Code, and the respondents’ request for dismissal on this basis is denied.

DEFERRAL

10In their Response, the respondents argue, in the alternative, that the Application should be deferred pending the outcome of the civil proceeding. Although the applicant delivered written submissions, they were unresponsive on the issue of deferral.

11The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

12In their submissions on deferral, the respondents state that the applicant commenced her civil action under the simplified procedure set out in the Rules of Civil Procedure. They state that this gives her some control “on how quickly the civil matter proceeds.” However, there is no further information about the stage the civil proceedings are at despite the fact that more than a year has elapsed since the civil proceedings were commenced.

13In the absence of any information about the status of the civil proceeding, and in light of the fact that are important differences in the two proceedings, I am not prepared to defer the Application pending the outcome of the civil proceeding at this time. The respondents’ request to defer is denied.

14I am not seized.