HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark Thomas
Applicant
-and-
381883 Ontario Ltd. o/a 100 Jameson Avenue Apartments
Respondent
interim decision
Adjudicator: Ena Chadha
Indexed as: Thomas v. 381883 Ontario Ltd.
WRITTEN SUBMISSIONS
Mark Thomas, Applicant
Self-represented
381883 Ontario Ltd. o/a 100 Jameson Avenue Apartments, Respondent
Tracy A. Kay, Counsel
INTRODUCTION
1The applicant filed this Application on February 21, 2012, 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 grounds of creed, marital status and association with a person protected under the Code. The applicant alleges that his employer treated him unfairly because of his religion and dismissed him because of his relationship with his wife and his wife’s ethnic background.
2The respondent filed a Response on April 11, 2012, requesting the Tribunal to dismiss the Application on the basis that the applicant has filed a counter-claim in a civil suit and/or defer the Application on the basis that the applicant filed an Employment Standards claim with the Ministry of Labour.
3On April 27, 2012, the applicant filed a Reply and submissions opposing the respondent’s requests to dismiss and/or defer. The applicant submits that the respondent launched a Small Claims Court action against him and, in responding to that lawsuit, he filed a counter-claim. The applicant submits that the Small Claims Court matter does not mention any human rights violations. The applicant further submits that the Ministry of Labour matter is no longer active.
ANALYSIS
Dismissal
4The respondent’s request to dismiss is based on section 34(11) of the Code, which 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
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:
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
6The respondent asks that the Tribunal dismiss the Application because the applicant has counter-claimed for damages against the respondent in Small Claims Court.
7While much of the Tribunal’s jurisprudence in respect of section 34(11) relates to civil actions initiated by applicants, section 34(11) does not stipulate that the civil proceeding must have originated from the applicant. Section 34(11) is triggered where there is an ongoing civil court matter in which an applicant makes a claim for remedies based upon alleged infringements of the Code. As such, I find section 34(11) applies even in the situation of a counter-suit if the counter claim in the civil action involves an applicant seeking section 46.1-related remedies for alleged human rights violations.
8The respondent appears to argue that this Application should be dismissed because the applicant’s counter-claim relies on the same events as alleged in the Application. The fact that an application is based on the same chronology as alleged in a civil action is not sufficient to invoke the section 34(11) bar. If the alleged violations 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.
9Having considered the parties’ submissions and carefully reviewed the parties’ documentary materials, I accept the applicant’s position that the Small Claims Court matter, and more specifically his counter-suit, does not raise human rights issues. The applicant’s counter-claim appears to seek compensation for various things involving his rental unit and services he contends to have provided to the respondent over the years. Given that the applicant appears to only be seeking common law damages, and in no way seems to assert any human rights concerns in his counter claim, I find, therefore, that section 34(11) of the Code does not apply in the circumstances of this case.
Deferral
10The applicant provided a letter from the Ministry of Labour confirming that his Employment Standards claim was withdrawn on April 23, 2012. As such, there is no longer any basis to defer this Application to the Ministry of Labour.
11However, consideration may be given to whether this Application should be deferred pending the conclusion of the Small Claims Court process.
12The 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.
13Accordingly, the Tribunal seeks the parties’ submissions as to whether it is appropriate to defer the Application until the conclusion of the Small Claims Court process.
ORDER
14The respondent’s request to dismiss the Application is denied.
15Within 14 days of the date of this Interim Decision, both parties are required to file written submissions regarding the status of the Small Claim Court matters and whether this Application should be deferred pending the conclusion of the Small Claims Court process.
16I am not seized of this matter.
Dated at Toronto, this 14th day of May, 2012.
“Signed by”
Ena Chadha
Vice-chair