Mikhael Grishin v. Frommelt Industries of Canada Inc., 2012 HRTO 1340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mikhael Grishin

Applicant

-and-

Frommelt Industries of Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: July 6, 2012

Citation: 2012 HRTO 1340

Indexed as: Grishin v. Frommelt Industries of Canada Inc.

WRITTEN SUBMISSIONS

Mikhael Grishin, Applicant

Olga Kuchmar, Representative

Frommelt Industries of Canada Inc., Respondent

Andrea Sanche, Counsel

Introduction

1This is an Application filed on April 5, 2012 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 employment because of race, colour, ancestry place of origin, citizenship, ethnic origin and age.

2This Decision addresses whether the Application is barred or should be deferred as the applicant is plaintiff in an ongoing civil proceeding against the respondent.

3The applicant alleges that respondent subjected the applicant to harassment and discrimination because of his age and selected him for lay off in October 2011 because of his age. The applicant identifies himself as a Russian immigrant and also alleges that the respondent discriminated against him because of poor English language proficiency.

4In December 2011, the applicant filed a civil action against the respondents and others claiming damages for wrongful dismissal and breach of the Employment Standards Act, 2000, S.O. c.41, as amended. The respondent states that the trial of the civil action is scheduled for September 6, 2012.

Analysis

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

5Section 46.1 reads as follows:

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.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

6The purpose of section 34(11) is to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paragraphs. 10-11, the Tribunal concluded that a claim need not specifically plead section 46.1 of the Code for section 34(11)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.

To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

7The termination of the applicant’s employment is a central issue in both the Application and civil action. In my view, the statement of claim in the civil action does make allegations of age discrimination regarding the decision to dismiss the applicant and seeks damages for the wrongful dismissal caused by this discrimination. On the other hand, the statement of claim does not in my view include any allegations of discrimination because of the applicant’s language proficiency or of harassment because of age. In these circumstances, I find that the most fair, just and expeditious procedure is to defer the Application pending the outcome of the civil action.

8Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal 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.

9In the circumstances of this case, I find that deferral is appropriate. The trial of the civil action is scheduled to commence shortly. The civil action and the human rights Application will address similar facts and issues; therefore, the resolution of the civil action has the potential to narrow the scope of the Application.

10At the conclusion of the civil action, either party may contact the Tribunal to continue processing the Application.