Chowdhury v. Burger King Restaurants of Canada Inc., 2011 HRTO 674

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hafizur Chowdhury

Applicant

-and-

Burger King Restaurants of Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: April 7, 2011

Citation: 2011 HRTO 674

Indexed as: Chowdhury v. Burger King Restaurants of Canada

WRITTEN SUBMISSIONS

Hafizur Chowdhury, Applicant ) Stephen Ellis,

) Counsel

Burger King Canada, ) Daniel B. Fogel

Respondent ) Counsel

INTRODUCTION

1This is an Application filed October 7, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the“Code”) alleging discrimination on the basis of age. The Application seeks, among other things, a monetary remedy for loss of income due to the termination of the applicant’s employment.

2This Interim Decision deals with Requests for an Order During Proceedings filed by the respondent employer in which it seeks dismissal of the Application under section 34(11) of the Code or, in the alternative, deferral pending the outcome of a civil proceeding.

3The basis for the current requests to is a Statement of Claim issued by the applicants against the respondent on November 18, 2010. The Statement of Claim alleges wrongful dismissal, defamation and damages for mental distress. Although the timetable for the civil action is not certain, it does appear that the parties are fully engaged in taking steps to pursue it.

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

5In 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.

6In 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. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

7In the present case, there is no doubt that there is a considerable overlap in the facts in the civil action and those in the Application. The pivotal issue raised by the applicant in both proceedings, the reason for the termination of the applicant’s employment, also overlap. However, the civil action does not ask the court to make any findings about whether the actions were discriminatory, and does not seek remedies for discrimination.

8It may be that the applicant could have raised issues of discrimination under the Code in the court proceeding. But the Tribunal does not apply section 34(11) based on the availability of a court remedy for discrimination. While the Tribunal has warned against an overly technical interpretation of section 34(11), it has stressed that the purpose of this provision is to prevent an applicant from pursuing duplicate court and Tribunal proceedings which both raise issues of discrimination. In this case, although the events giving rise to both proceedings are largely the same, the applicants have not chosen to raise their claim of discrimination before the courts.

9The Tribunal finds, therefore, that the Application is not barred by section 34(11). In arriving at my conclusion, I find the facts of this case similar to those in Baker v. Sears Canada, 2009 HRTO 1793 and Tsehaye v. English District Lutheran Church-Missouri Synod, 2011 HRTO 1396,, in which the Tribunal found section 34(11) inapplicable.

DEFERRAL

10The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10; Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

11In the present case, there are factors weighing against deferral. As the applicant notes in his submissions, the Application and civil action deal with different legal theories i.e., the civil action makes no mention of the Code. However, a deferral under section 45 of the Code does not require the conclusion that the other proceedings must potentially dispose of all of the issues in the Application. See Bradshaw v. Complex Services, 2010 HRTO 1215.

12The close relationship between the facts and issues in the two proceedings strongly favours deferral. In such circumstances it is not fair to the parties, or in the public interest, to simultaneously conduct two proceedings dealing with substantially the same issues. Clearly there is a potential for inconsistent findings in the two proceedings. Inconsistent findings might result because the cases are presented differently or because different statutes or rules apply. Here the outcome of the civil action may have a particular bearing on the key issue of compensation for loss of employment in the event that the applicant succeeds in showing an infringement of his Code-protected rights at the Tribunal. See Mahjour v. Joe Singer Shoes, 2010 HRTO 1053.

ORDER

13The Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s civil action. The parties’ attention is directed to Tribunal Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an Application after the conclusion of the civil action.

14I am not seized of this matter.