Perrone v. Richvale York Block Inc., 2012 HRTO 581

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cosimo Perrone

Applicant

-and-

Richvale York Block Inc.,

John Stankiewicz and Stanley Stankiewicz

Respondents

DECisION

Adjudicator: Mark Hart

Date: March 20, 2012

Citation: 2012 HRTO 581

Indexed as: Perrone v. Richvale York Block Inc.

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, dated June 29, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 14, 2008.

2The applicant alleges discrimination in employment because of race and colour and because of his association, relationship or dealings with a person identified by a prohibited ground of discrimination and for reprisal. In essence, the applicant alleges that his employment with the respondent company was terminated in October 2007 because he had hired a temporary employee who is Black and refused to terminate this employee’s employment for a discriminatory reason.

3On October 21, 2009, the applicant commenced a civil action against the respondent company, claiming damages for wrongful dismissal and mental distress and aggravated and punitive damages. The civil action also expressly claims damages pursuant to the Code. The particulars of the claim include reference to the allegations raised in the Application as a basis for seeking damages under the Code.

4On November 12, 2009, the applicant made a Request for Order to this Tribunal seeking deferral of his Application pending the determination of his civil action. It was indicated on the Request form that the respondents consented to the applicant’s request.

5As a result, the Tribunal sent a letter to the parties dated January 27, 2010 confirming that the parties had agreed to defer the matter pending the outcome of the civil proceeding, and advising the parties that if any party wished to bring the matter back on, they needed to contact the Tribunal within 60 days from the completion of the civil proceeding.

6On December 6, 2010, the Tribunal sent a letter to the parties requesting an update regarding the status of the civil proceeding. The applicant replied on January 4, 2011 to advise that the civil proceeding was still ongoing.

7On June 8, 2011, the Tribunal sent a further letter to the parties requesting a status update. The applicant responded on July 8, 2011 to advise that the civil proceeding still had not concluded but that he anticipated some form of conclusion to the civil matter by October 2011.

8Having heard nothing further, the Tribunal sent a letter to the parties dated November 22, 2011 requesting a status update within 30 days. No response was received to this correspondence.

9On January 26, 2012, I issued a Case Assessment Direction to the parties to give notice to the applicant that the Tribunal may dismiss his Application as barred by s. 34(11) of the Code on the basis that he had commenced a civil action seeking a remedial order in relation to the allegations raised in the Application.

10Section 34(11) of the Code reads as follows:

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.

11In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at para. 6, the Tribunal described the operation of s. 34(11) as follows:

If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

12In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paras. 10-11, the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section 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.

13In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109 at para. 11, this Tribunal held that s. 34(11) of the Code operates as a bar to an Application whether the civil action is commenced before or after the Application is filed:

In my view, s. 34(11) applies to bar an application from proceeding where a civil action has been commenced both after and before the application. The word “make” is intended to refer to both the commencement and continuation of the application. . . . The purpose of the provision is to avoid duplication of court and HRTO proceedings alleging particular breaches of the Code, and there is no logical reason why the order in which the two proceedings were commenced should affect whether the Tribunal has jurisdiction.

14The Tribunal’s approach to the interpretation of s. 34(11) of the Code to extend to civil proceedings commenced after the filing of an Application with this Tribunal recently was upheld by the Divisional Court as reasonable and rationally supportable: Grogan v. Ontario Human Rights Tribunal, released February 10, 2012 (unreported).

15As a result, even though the civil action in the instant case was commenced by the applicant in October 2009 after he already had filed his Application to this Tribunal, his Application may nonetheless be barred by s. 34(11).

16In my Case Assessment Direction, I afforded the applicant with an opportunity to make written submissions on the issue of whether his Application should be dismissed as barred by s. 34(11) of the Code, to be served on respondent counsel and filed with the Tribunal within 14 calendar days.

17On February 17, 2012, the applicant sent a letter to the Tribunal stating simply that his civil action had not yet been concluded and requesting that the Tribunal “defer the current motion until the civil matter has been resolved”.

18On February 27, 2012, the Tribunal sent correspondence to the parties in reply to the applicant’s letter. This letter directed the applicant to make submissions on the issue of whether his Application should be dismissed as barred by s. 34(11) of the Code within 14 calendar days. The letter stated that if the applicant failed to make submissions within this timeframe, the Tribunal may proceed to consider and determine this issue in the absence of his submissions.

19To date, no submissions have been received on this issue from the applicant.

20As stated above, the civil action commenced by the applicant against the respondent company expressly claims damages pursuant to the Code, and the particulars of the claim include reference to the allegations raised in the Application as a basis for seeking damages under the Code. As a result, I find that the applicant is seeking an order in the civil proceeding under section 46.1 of the Code with respect to the infringement alleged in his Application before this Tribunal. I further find that the civil proceeding has not been finally determined or withdrawn, as the applicant has indicated that it has not yet concluded.

21Accordingly, I find that this Application is barred by s. 34(11) of the Code.

22The Application is therefore dismissed.