Joe Panimondo v. Capreit GP Inc., 2012 HRTO 1346

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joe Panimondo

Applicant

-and-

Capreit GP Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: July 6, 2012

Citation: 2012 HRTO 1346

Indexed as: Panimondo v. Capreit GP Inc.

WRITTEN SUBMISSIONS

Capreit GP Inc., Respondent

Diane Pereira, Representative

1This Interim Decision addresses a Request for Order During Proceedings (“the Request”) filed by the respondent on May 30, 2012. The Request was delivered to the applicant but he did not respond and the time for doing so has now passed.

2The Application alleged discrimination in employment because of disability in respect to events in 2006. It also alleged that the termination of the applicant’s employment in December 2009 was discriminatory.

3In Interim Decision 2011 HRTO 1816, dated October 6, 2011, the Tribunal dismissed the allegations that predated the termination of the applicant’s employment in December 2009 because the Application in respect of those allegations was not filed in accordance with the time frames set out in section 34 of the Code. The Interim Decision directed that the Tribunal would continue to process the Application in respect of the allegations concerning the termination of the applicant’s employment in December 2009.

4On November 30, 2011, the applicant commenced an action against the respondent in the Ontario Superior Court of Justice, small claims court. The action claims damages for events during the applicant’s employment with the respondent and also for the termination of the applicant’s employment. It does not specifically indicate that the applicant is seeking damages under the Code.

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

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

6The Request filed by the respondent asks the Tribunal to dismiss the Application because the applicant has commenced a civil proceeding in Court concerning the same events as gave rise to the Application and including the termination of the applicant’s employment in December 2009. In the alternative, the Request asks the Tribunal to defer further consideration of the Application until the proceeding before the Court is concluded.

7In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal found that an Application may be barred under section 34(11) even if the statement of claim does not specifically plead section 46.1 of the Code. At paragraph 11 the Tribunal concluded:

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.

8In the present case, the factual allegations underlying the statement of claim in the civil action and the allegations in the Application are the same. However, it does not appear that the applicant has asked the Court to find an infringement of his rights under the Code and nor has he sought damages under the Code in the civil action. For these reasons, I find that the Application is not barred by section 34(11) of the Code.

9However, since the Application raises the same factual allegations as does the civil action, it is appropriate for the Tribunal to exercise its power under rule 19 of the Tribunal’s Rules of Procedure to defer further consideration of the Application until the proceeding before the court is concluded.

ORDER

10Further consideration of the Application is deferred until the proceeding before the Court is concluded.

11Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure outline the process by which the Application may be brought back on after the civil claim has been concluded.