Talos v. Grand Erie District School Board, 2012 HRTO 1426

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steve Talos

Applicant

-and-

Grand Erie District School Board

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: July 20, 2012

Citation: 2012 HRTO 1426

Indexed as: Talos v. Grand Erie District School Board

WRITTEN SUBMISSIONS

Steve Talos, Applicant

Self-represented

Grand Erie District School Board, Respondent

Richelle Pollard, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant advised when he filed his Application that he had also commenced a Small Claims Court Action. The attached Statement of Claim indicates it was issued on April 13, 2012. The Application to this Tribunal was filed on April 26, 2012.

2At the time it served the Application on the respondent, the Tribunal also issued a Notice of Intent to Defer ("NOID"), seeking written submissions from the parties. Submissions were received from the parties. The applicant then filed further written submissions in response to the respondent's submission, to which the respondent responded. The applicant, in turn, filed yet more submissions. While it is sometimes necessary to respond to new matters raised by the other party, this practice of continuously responding to the other party's submissions is to be discouraged.

3When it filed its written submissions, the respondent raised the issue of whether the applicant lacked the jurisdiction to file under s. 34(11) of the Code. The applicant attempted to respond, but it is not clear to me that the applicant fully understood the implications of this provision of the Code. Accordingly, while I am in a position to rule on the deferral issue, I am seeking further submissions from the parties on the issue of whether the applicant is barred from filing his Application while his civil action is ongoing.

Deferral

4Both parties agree that the respondent takes the position that the applicant is barred from bringing his civil action by virtue of the fact that the applicant is a member of a bargaining unit (the Ontario Secondary School Teachers Federation). In para. 38 of her Affidavit in the respondent's Motion to Strike, Sharon Bell states:

It is the Board's position that the court does not have jurisdiction to hear Mr. Talos' claim as it properly falls within the jurisdiction of a labour arbitration pursuant to the Ontario Labour Relations Act ("LRA").

5In the circumstances where the respondent takes the position that the applicant does not have the jurisdiction to assert his or her rights in the other proceeding, this Tribunal has held that it is not fair, just or expeditious to defer to this other proceeding: See Krieger v. Toronto Police Services Board, 2008 HRTO 183. Accordingly, the Tribunal will not defer this Application to the applicant's civil action before the Small Claims Court.

Section 34(11)

6However, the parties' submissions raise a question of whether this Tribunal has the jurisdiction to proceed with this Application in light of the current Small Claims Court matter being pursued by the applicant. Section 34(11) of the Code states:

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.

7Both the original and the amended Statement of Claim shows that the applicant is seeking general damages for "injury to dignity, feelings and self-respect," which is an order specifically referenced in s. 46.1 of the Code.

8The applicant indicates that he is intending to let his Statement of Claim lapse in October, 2012. However, s. 34(11)(a) refers only to proceedings that have been "finally determined or withdrawn."

9The applicant is directed to deliver his written submissions on this issue to the respondent and the Tribunal by August 10, 2012. The respondent is directed to deliver to the applicant and the Tribunal its written submissions in response by August 17, 2012.

order

10In sum, I have made the following order and directions:

a. The Tribunal will not defer to the applicant's civil action before the Small Claims Court;

b. The applicant is directed to deliver his written submissions on the application of s. 34(11) of the Code to the respondent and the Tribunal by August 10, 2012;

c. The respondent is directed to deliver to the applicant and the Tribunal its written submissions in response by August 17, 2012.

11I am not seized of this matter.