HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher DiCarlo
Applicant
-and-
University of Ontario Institute of Technology
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: DiCarlo v. University of Ontario Institute of Technology
WRITTEN SUBMISSIONS BY
Christopher DiCarlo, Applicant ) Amer Mushtaq, Counsel
University of Ontario Institute ) George Avraam, Counsel
of Technology, Respondent )
1The purpose of this Interim Decision is to address the respondent’s request for an early dismissal of the Application on the basis that it is barred by s. 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), as well as its request, in the alternative, to defer this Application pending the completion of the civil proceeding. A hearing is scheduled in the matter for November 8, 2011.
2The applicant filed this Application, dated May 12, 2010, alleging discrimination in employment on the basis of creed and reprisal contrary to the Code. The applicant, who was a contractual professor at the respondent university, alleges he was denied a promotion and then his contract was ended as result of his creed. In his Reply, the applicant sought to amend his Application by narrowing the remedy he is seeking from this process.
3In addition to filing an Application, the applicant instituted a civil action on July 16, 2010. He subsequently amended his Statement of Claim on January 19, 2011. His amended Statement of Claim claims damages for breach of contract, wrongful dismissal, and fraudulent and/or negligent misrepresentation.
DISMISSAL REQUEST
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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:
(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.
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 respondent argues 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 many of the underlying facts are in essence the same.
8However, what is notable is that the Application is framed as a breach of the applicant’s right to be free from discrimination and reprisal, while the civil claim makes no reference to what the applicant alleges is the underlying reason for the termination of his contract (i.e., his outspokenness on his creed). That is, there is no reference to discrimination, reprisal, harassment or the Code in the civil claim.
9The damages sought for the civil action are monetary, while the damages sought by the applicant in his Reply are for general and “punitive” damages, reinstatement and the development of policies and mandatory education/training on creed.
10The applicant has been careful to not bring duplicative proceedings. He specifically states in his Amended Statement of Claim that he has commenced an application with the Tribunal, but that “the facts relied upon and the remedies sought in the Human Rights Application are different than the ones sought herein.”
11On the basis of the differences in the two proceedings, I conclude that this Application is not barred by operation of s. 34(11). Accordingly, the respondent’s request for dismissal on this basis is denied.
DEFERRAL
12In its Response, the respondent argues, in the alternative, that the Application should be deferred pending the outcome of the civil claim. The applicant opposes deferral.
13The 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.
14However, the Tribunal is also concerned that concurrent proceedings could result in inconsistent findings on fact. This would be a concern here because, as noted above, many of underlying facts to the civil claim and this Application are the same, in particular, those that relate to the respondent’s defence. It is appropriate, therefore, to consider the status of the civil proceeding.
15The respondent notes that there has been an initial round of discovery. The applicant acknowledges that, but states there are many further steps that need to take place, including the preparation of “further and better affidavits of documents,” a second round of examinations for discovery and mandatory mediation before the trial is scheduled. The applicant’s counsel estimates that a trial in the civil action is at least two years away.
16On the basis of this information, the likelihood of “concurrent” findings is greatly diminished. For this reason, I am not prepared to defer the hearing of this Application, which is scheduled to commence in two weeks’ time. The respondent’s request to defer is dismissed.
Removal of Respondent
17The applicant named an individual respondent as well as the respondent university in his Application. The respondents brought a Request for Order to remove the individual respondent, which the applicant consented to. I agree that this is the appropriate course of action. Richard Marceau is removed as a respondent to this Application and the title of proceeding amended accordingly.
18I am not seized of this matter.
Dated at Toronto, this 25th day of October, 2011.
“Signed by”
Naomi Overend
Vice-chair