Tewari v. V.G. Packers Limited o/a VG Meats, 2013 HRTO 1642

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gaurav Tewari

Applicant

-and-

V.G. Packers Limited o/a VG Meats

Respondent

DECISION

Adjudicator: Ena Chadha

Date: October 2, 2013

Citation: 2013 HRTO 1642

Indexed as: Tewari v. V.G. Limited o/a VG Meats

APPEARANCES

Gaurav Tewari, Applicant

Todd Cook, Representative

V.G. Packers Limited o/a VG Meats, Respondent

Kyle D. Cleaver, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, place of origin, ethnic origin and disability.

2The applicant alleges that the respondent employer began to unfair criticize his performance only after he suffered a workplace injury. The applicant alleges that the respondent advertised the applicant’s job one day after receipt of the applicant’s Workplace Safety and Insurance Board claim. The applicant alleges that his employment was terminated while on modified duties and that the respondent’s concerns of poor performance were a pretext.

3The respondent filed a Response on August 19, 2013. The respondent requests that the Tribunal dismiss the Application pursuant to section 34(11) of the Code because the applicant commenced a civil proceeding against it seeking an order under the Code. The respondent provided a copy of the applicant’s Statement of Claim, issued by the Superior Court of Justice (Small Claims Court) on August 21, 2013.

4The applicant filed a response to the respondent’s request. The applicant requests that the Tribunal defer the Application. The Application did not provide any submissions regarding the section 34(11) jurisdictional issue.

Decision

5I find that section 34(11) of the Code bars this Application from proceeding because the applicant commenced a civil suit based on the same facts and allegations and is seeking similar remedies in the civil action as sought in this Application.

6Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

7Section 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:

1. 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.

2. 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.

8The determinative question to be considered in undertaking a section 34(11) analysis is whether the civil action explicitly or implicitly raises Code-related interests and seeks remedial redress for those alleged human rights concerns: see for example, Smith v. Sears Canada, 2010 HRTO 1834 and Jarrett v. Vance, 2012 HRTO 24.

9The applicant Statement of Claim expressly pleads and relies on section 5 of the Code, alleges that the applicant suffered race and disability related discrimination, and seeks general damages under the Code. The Statement of Claim is against the same respondent party, is based on the same set of facts, makes the same human rights allegations and seeks Code remedies.

10The Tribunal does not have discretion when an application comes within the ambit of section 34(11) and, therefore, I find this Application must be dismissed. This case fits squarely within the provisions of section 34(11) because the Application and the civil suit are concurrent proceedings that raise substantially all of the same allegations and seek remedies for the same human rights violations.

11I find that the Application falls within the circumstances described in section 34(11) of the Code and, therefore, the Tribunal does not have jurisdiction over the Application. Accordingly, the Application is dismissed.