HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Luigi Pavone
Applicant
-and-
Navacro Machining Inc.
Respondent
Interim Decision
Adjudicator: Ena Chadha
Indexed as: Pavone v. Navacro Machining Inc.
WRITTEN SUBMISSIONS
Luigi Pavone, Applicant
Wade Poziomka, Counsel
Navacro Machining Inc., Respondent
Mark Zega, Counsel
1The Applicant filed an Application on October 21, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of family status.
2The respondent filed a Response on December 8, 2011, denying the allegations. The respondent indicated that the applicant commenced a civil suit seeking damages for oppressive conduct and unequal distribution of profits with respect to matters related to the Application.
3The applicant filed a Reply on January 10, 2012; however, the reply submissions did not reference the civil suit.
4By way of Case Assessment Direction dated June 27, 2012, the Tribunal sought submissions from the parties as to whether or not the Application should be dismissed pursuant to section 34(11) of Code or deferred pending the conclusion of any concurrent civil proceeding.
5The respondent filed submissions on July 16, 2012. The respondent asserts that the Application is barred from proceeding in accordance with section 34(11). The respondent submits that the applicant’s civil action alleges misconduct by the respondent and other related defendants and that the alleged disadvantageous treatment is similar to the applicant’s claims of discrimination because of his family status. In the alternative, the respondent supports deferral of the Application only if the applicant is not seeking reinstatement or compensation/damages relating to the deferral period.
6The applicant filed submissions August 8, 2012, and opposes dismissal of the Application. While the applicant acknowledges that he is a party to a civil suit against the respondent, the applicant asserts that the civil suit is not based on the same facts as alleged in the Application and does not seek remedies for the alleged human rights violations. The applicant provided a copy of the Statement of Claim, issued on July 8, 2010. The applicant also opposes deferral. The applicant submits that since the issues in the civil suit are entirely different and separate from the human rights claim the decision from one forum will not impact the other forum.
Section 34(11)
7Section 34(11) bars an application from proceeding in a situation where the applicant has commenced a civil suit based on the same facts and seeking similar remedies for the alleged human rights violations. Section 34(11) provides that:
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.
8Section 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:
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.
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
9In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the following principles applicable to the interpretation of section 34(11) at paras. 10-11:
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.
10Based on my review of the Statement of Claim, I find that there is little overlap between the two proceedings. The civil case before the Superior Court of Justice is a shareholder action seeking an oppression remedy for the applicant and his family. The civil suit involves 25 parties. There is minimal reference to the applicant in the Statement of Claim. No human rights claims, issues or remedies have been alleged in the civil action. While the some of the factual background is the same, the civil action in no way touches on the applicant’s alleged discriminatory demotion and termination.
11In its submissions, the respondent argues that the Application should be dismissed as it is arises out on the same facts underlying the civil action. Given that the civil actions makes no allegations of human rights infringements, nor seeks remedies for any such alleged infringements, I find that the fact that the Application is based on some of the same chronology as alleged in the civil action is not sufficient to bar the Application under section 34(11). If the alleged rights and legal theories asserted in the two proceedings are distinct and the remedial claims do not intersect, a mere overlap in factual background does not trigger section 34(11) of the Code.
12Having reviewed the parties’ materials, I accept the applicant’s position that section 34(11) of the Code does not apply.
Deferral
13The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral 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.
14The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises in considering what is most fair, just and expeditious in the circumstances of each case.
15I find that there are number of factors that indicate deferral is not appropriate in this case. As previously noted, although there is some overlap between the chronology in the civil case and this Application, it appears that the issues in the two proceedings, as well as the remedies available to the applicant, are entirely different. Furthermore, that status of the civil suit is unclear and no information has been provided as to whether the civil suit will proceed in the foreseeable future.
16Accordingly, I find this is not an appropriate case in which to exercise its discretion to defer. The Tribunal will continue to process the Application.
17I am not seized of this matter.
Dated at Toronto, this 20^th^ day of August, 2012.
Signed by
Ena Chadha
Vice-chair