Chang Gen Hu v. Canadore College, 2012 HRTO 1088

Human Rights Tribunal of Ontario

B E T W E E N:

Chang Gen Hu

Applicant

-and-

Canadore College

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: May 31, 2012

Citation: 2012 HRTO 1088

Indexed as: Hu v. Canadore College

WRITTEN SUBMISSIONS

Chang Gen Hu, Applicant ) Self-represented

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of place of origin. The Application has not yet been delivered to the respondent and therefore no Response has been filed.

2On April 16, 2012 the Tribunal issued a Notice of Intent to Dismiss the Application (NOID) on the basis that the applicant has also commenced a civil suit related to the same subject matter. The applicant was invited to make submissions.

3In his submissions, the applicant states that his preference is to have his human rights issues dealt with by the Tribunal but he has not yet withdrawn the civil claim.

4At this preliminary stage the Tribunal will not dismiss an Application unless it is plain and obvious that the Tribunal has no jurisdiction to consider the matter.

5Section 34(11) of the Code provides as follows:

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

6Section 46. 1 gives the courts the authority to order monetary compensation and restitution where a breach of the Code is found. Section 34(11) acknowledges the fact that the courts have been given clear jurisdiction to determine claims of human rights violations. However the Code requires that a person seeking to vindicate their rights must make a choice about where to proceed with their claim. Once the choice is made to proceed with a claim before the courts, section 34(11) is clear that the individual cannot then proceed with an application to this Tribunal unless they have already withdrawn the civil claim. As of this writing the civil action has not been withdrawn, determined or settled.

7The essential claim in the Application is that the applicant was reprised against by the respondent for having complained about what he perceived to be inadequate instruction. The applicant claims that he was issued and re-issued a Trespass Notice after complaining about the inadequate instruction and other matters, because he was an immigrant from China. The applicant claims that Canadian born students were not treated the same way when they made complaints.

8The statement of claim is much more detailed than the Application and describes in a great deal of detail alleged inadequacies in the instruction the applicant received and what he perceived to be unfair treatment as he attempted to resolve these issues. It also alleges that the issuance and re-issuance of a Trespass Notice was unfair. However, the civil claim is not framed by any particular cause of action. For example, it is not alleged to be based on an alleged breach of contract and as indicated does not reference the Code. Similarly there is no explicit request for an Order pursuant to section 46.1 of the Code.

9At this stage I am not satisfied that it is plain and obvious that the claims in the two proceedings are the same such that section 34(11) would act as a bar to this Application proceeding. Although the Application and the Statement of Claim cover largely the same factual circumstances such that a deferral pursuant to section 45 of the Code might be appropriate, it is unclear precisely what claim is being advanced in the civil action. Although this is not determinative the statement of claim makes no reference to the Code or section 46.1 and the remedies sought although substantial are framed very generally as damages for pain and suffering; aggravated and punitive damages and other sundry out of pocket expenses.

10This is not a final decision with respect to the jurisdiction of the Tribunal to deal with this Application. The Application will be delivered to the respondent with a copy of this Interim Decision. The Tribunal’s Rules require that the respondent file a Response (Form 3) to the Application within 35 days of its receipt of the Application.

11The Tribunal makes the following Direction:

a. Within 35 days of the receipt of the Application the respondent will deliver and file their submissions with respect to whether this Application is outside the Tribunal’s jurisdiction pursuant to section 34(11) of the Code, or alternatively should be deferred pursuant to section 45 of the Code;

b. The applicant will deliver and file his reply, submission on these issues, if any, within 21 days of receiving the respondent’s submissions..

12The Tribunal may determine this issue based on the written submissions of the parties. In the event that the Tribunal considers it appropriate to require oral submissions the Tribunal will contact the parties to set a date for a hearing by teleconference.

13I am not seized of this case.