HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joshua Chalhoub

Applicant

-and-

Ontario Lottery and Gaming Corporation

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: December 2, 2011

Citation: 2011 HRTO 2169

Indexed as: Chalhoub v. Ontario Lottery and Gaming Corporation

[1] The 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 subsection 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[2] The applicant filed this Application on August 22, 2011 alleging discrimination and harassment in employment on the basis of sex, sexual orientation and reprisal. His Application deals with allegations from the “onset” on his employment until his termination from his position on or around June 11, 2011. On June 29, 2011, the applicant filed a Statement of Claim for wrongful dismissal.

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

[4] Section 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.

[5] 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. See [Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282](https://www.minicounsel.ca/hrto/2008/282), at para. [10](https://www.minicounsel.ca/hrto/2008/282).

[6] The respondent argues that the Statement of Claim contains the same allegations of harassment and reprisal as are found in the Application. In particular, the respondent makes reference to an allegation in the Statement of Claim that the respondent “did not appreciate the Plaintiff’s “harassment complaint” and made every effort to find some reason to terminate his employment sending a strong message to both the Plaitiff [sic] and others that any type of complaint made will followed [sic] with strong reprisal.”

[7] While I can appreciate that this reference to reprisal appears to mirror the allegation of reprisal in the Application, the civil action primarily deals with the absence of cause for his termination. Moreover, in contrast to his Application, there are no allegations in the Statement of Claim of harassment or discriminatory treatment while he was still employed and no request for remedy for that alleged harassment/discrimination in the civil action.

[8] In requesting “bad faith, punitive and other damages” in his civil action, the respondent argues the applicant is indirectly asking for damages for reprisal. This is not an obvious or necessary conclusion based on a reading of the Statement of Claim as a whole and not sufficient to deprive the applicant of the jurisdiction to file an Application with the Tribunal. In his Statement of Claim the applicant does not otherwise allege a breach of the Code or seek Code remedies.

[9] On the basis of the differences in the two proceedings, I conclude that this Application is not barred by operation of subsection 34(11). Accordingly, the respondent’s request for dismissal on this basis is denied.

[10] The respondent must file its full Response with the Tribunal within 35 days of the date of this Interim Decision.

[11] I am not seized of this matter.

Dated at Toronto, this 2nd day of, December 2011.

“signed by”

Naomi Overend

Vice-chair```

Joshua Chalhoub v. Ontario Lottery and Gaming Corporation, 2011 HRTO 2169

Case Summary

HUMAN RIGHTS TRIBUNAL OF ONTARIO

[1] The 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 subsection 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[3] Section 34(11) of the Code provides:

[4] Section 46.1 of the Code provides:

[9] On the basis of the differences in the two proceedings, I conclude that this Application is not barred by operation of subsection 34(11). Accordingly, the respondent’s request for dismissal on this basis is denied.

[10] The respondent must file its full Response with the Tribunal within 35 days of the date of this Interim Decision.

[11] I am not seized of this matter.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

[1] The 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 subsection 34(11) of the *Human Rights Code*, R.S.O. 1990, c. H.19, as amended (the “Code”).

[3] Section 34(11) of the Code provides:

[4] Section 46.1 of the Code provides:

[9] On the basis of the differences in the two proceedings, I conclude that this Application is not barred by operation of subsection 34(11). Accordingly, the respondent’s request for dismissal on this basis is denied.

[10] The respondent must file its full Response with the Tribunal within 35 days of the date of this Interim Decision.

[11] I am not seized of this matter.

[1] The 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 subsection 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).