Tsehaye v. English District Lutheran Church-Missouri Synod, 2011 HRTO 629

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Berhane Tsehaye on his own behalf and on behalf of Amleset Bennet, Temesgen Tirfe, Daniel Teklehaimanot, Janice Drews, Alice Greifengerger, Boffy Nyen, Ghebrelul Gime, Tekleab Schewai and Ariam Woldekri

Applicant

-and-

English District Lutheran Church-Missouri Synod, David Stechholz, Jeffrey Miskus and Tom Steers

Respondents

DECISION

Adjudicator: Sherry Liang

Date: March 31, 2011

Citation: 2011 HRTO 629

Indexed as: Tsehaye v. English District Lutheran Church-Missouri Synod

WRITTEN SUBMISSIONS

Berhane Tsehaye on his own behalf and on behalf of Amleset Bennet, Temesgen Tirfe, Daniel Teklehaimanot, Janice Drews, Alice Greifengerger, Boffy Nyen, Ghebrelul Gime, Tekleab Schewai and Ariam Woldekri, Applicant/Claimants Kate Stephenson, Counsel

English District Lutheran Church-Missouri Synod, David Stechholz, and Jeffrey Miskus, Respondents Evan VanDyk, Counsel

Tom Steers, Respondent no submissions

1This is an Application filed on August 5, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Interim Decision dated June 21, 2010, 2010 HRTO 1396, the Tribunal directed, among other things, that this Application be deferred pending the conclusion of a related civil proceeding. The Tribunal also dismissed a Request for an Order During Proceedings brought by certain of the respondents seeking dismissal of the Application under section 34(11) of the Code. These respondents (all the respondents except Tom Steers), will simply be referred to as “the respondents” in this Decision, for ease of reference.

3The respondents have brought a further Request for Order in which they seek dismissal once again on the basis of section 34(11) of the Code. The applicant/ claimants have filed a Response to the Request, opposing dismissal of the Application.

4Although the civil proceedings have not been completed, the material before me warrants re-activation of the Application for the purpose of considering the Request. The respondents raise a jurisdictional bar to the continuation of the Application, based on changed circumstances, which I am satisfied should be considered and determined.

5The respondents state, and it is not contested, that on January 20, 2011, the plaintiffs to the civil action amended the Statement of Claim to seek damages for infringement of human rights and relying on section 46.1 of the Code. It is also not contested that the human rights allegations now being made in the civil action are based on the same events underlying the Application. The respondents submit that section 34(11) of the Code places an absolute bar on the Tribunal’s ability to consider an application in these circumstances.

6The applicant/claimants submit that because of the unique nature of class proceedings, it would be premature to dismiss the Application based solely on the amended Statement of Claim. They state that a certification motion is pending and presently scheduled to be heard on May 17 and 18, 2011. Until the class proceeding is certified, the class proceeding cannot proceed on its merits. They state that if the class action is not certified, “the merits may never be heard at all”. If the Application is dismissed before certification, they state, “there is a chance that the Applicant will never have a chance to proceed on the merits.”

7The applicant/claimants therefore submit that the matter should remain deferred.

8The respondents filed a brief Reply disputing the applicant/claimants’ assertions about the effect of certification of non-certification. Specifically, they state that if the prospective representative plaintiffs in the class action are not successful in the certification motion, the action will remain as a properly constituted individual action, which will proceed through the normal civil litigation process.

DECISION

9On my review of the matter, I find that section 34(11) applies to bar the Application from proceeding.

10In the Amended Statement of Claim, the plaintiffs, consisting of the applicant and two of the claimants on behalf of the other claimants as well as other individuals, claim “damages for infringement of human rights arising from discrimination on the grounds of race, colour, ancestry, place of origin, citizenship or ethnic origin, in the amount of $1,000,000 pursuant to s.1 and s. 46.1 of the Ontario Human Rights Code R.S.O. 1990, Chapter H.19.” In a sworn Affidavit filed in support of the motion for certification of the class action, the applicant explained that the rationale for the amendment was the Tribunal’s decision to defer the Application pending completion of the civil proceeding.

11In the Tribunal’s Interim Decision of June 21, 2010, the Tribunal found that the events giving rise to the civil action and the Application are “largely the same”. They stem from the operation of a church and a dispute regarding who has control of the church building and the assets of the congregation. In both proceedings, it is alleged that the defendants/respondents in effect improperly seized control of a church from its members, replacing the church council and appropriating its assets. With the amendments, both the civil action and the Application allege that the respondents’ actions are related to the fact that the majority of the members of the congregation are non-Caucasian immigrants from Africa, Sri Lanka and other countries, and that the applicant/claimants and others were expelled from the congregation and accorded less respect, trust and autonomy than would have been given to a congregation with a different racial and ethnic composition.

12Section 34(11) of the Code reads as follows:

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.

13Section 46.1 gives courts the power to award damages for breaches of human rights:

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.

14In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at para. 6, the Tribunal described the operation of s. 34(11) 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.

15In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109, the Tribunal found that section 34(11) applied whether the civil action was commenced before or after an application to the Tribunal. The Tribunal stated:

In my view, s. 34(11) applies to bar an application from proceeding where a civil action has been commenced both after and before the application. The word “make” is intended to refer to both the commencement and continuation of the application. There is no principled basis for the interpretation advanced by the applicant. The purpose of the provision is to avoid duplication of court and HRTO proceedings alleging particular breaches of the Code, and there is no logical reason why the order in which the two proceedings were commenced should affect whether the Tribunal has jurisdiction. The applicant’s interpretation would make the provision easy to circumvent, and would defeat the clear policy intent of the Legislature.

16I see no reason not to apply the principles expressed in the above cases. Although initially the civil action did not include claims based on alleged human rights violations, it has been subsequently amended to explicitly seek damages under section 46.1 of the Code.

17I have considered the applicant/claimants’ submissions and I do not see anything in the Class Proceedings Act, 1992, S.O. 1992, c. 6, that prevents the applicant/ claimants’ human rights allegations from proceeding as part of individual actions should the Court decide not to certify the class proceeding. As the applicant/claimants state,

(…)certification involves confirmation, by a court, that the case involves common issues that are amenable to determination by way of a class proceeding, and conversely, that individual issues are not predominant.

As such, even if the court were to decide that the case did not involve “common issues amenable to determination by way of a class proceeding”, this does not amount to a dismissal of the individual claims on their merits. Section 7 of the Act expressly contemplates the continuation of the proceeding, if certification is refused, in an amended form as one or more proceedings.

18Furthermore, it is not clear to me that the existence of a potential step in the litigation that may dispose of the civil claim without a hearing on the merits is an answer to the application of section 34(11). Where an applicant has chosen to seek a remedy for alleged human rights infringements as part of a civil claim, section 34(11) precludes that individual from making an application to the Tribunal. Section 34(11) is a jurisdictional bar to such an application. Where the conditions for applying section 34(11) are present, it is not for the Tribunal to engage in an assessment of any defences to the civil claim, or to consider the possibility that the claim may be dismissed without a hearing on the merits.

19For the same reason, I do not accept the applicant/claimants’ submission that the Tribunal should continue to defer the Application pending a decision on certification.

20Here, the applicant/claimants have chosen to put their allegations of discrimination before the courts as part of their civil action. It should be noted in this regard that some of the claimants on whose behalf the Application is made are representative plaintiffs in the proposed class action, and others are part of the described class. All of the applicant/claimants are described as former members of the church council who were removed from their positions by the respondents. There is no suggestion that any of the applicant/claimants who are not representative plaintiffs do not wish to be part of the class action.

21Under section 34(11), which applies to prevent the duplication of court and Tribunal proceedings dealing with the same human rights issues, and in these circumstances, the Application cannot proceed, and it is dismissed.