C.G. v. Markstay-Warren Minor Hockey Association, 2013 HRTO 1900

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.G. by his Litigation Guardian S.G.

Applicant

-and-

Markstay-Warren Minor Hockey Association, Chantal Piquette, and Mark Marois

Respondents

A N D B E T W E E N:

E.G. by her Litigation Guardian S.G.

Applicant

-and-

Markstay-Warren Minor Hockey Association, Chantal Piquette, and Mark Marois

Respondents

A N D B E T W E E N:

C.G. by his Litigation Guardian S.G.

Applicant

-and-

Markstay-Warren Minor Hockey Association, Chantal Piquette, and Mark Marois

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: November 14, 2013

Citation: 2013 HRTO 1900

Indexed as: C.G. v. Markstay-Warren Minor Hockey Association

INTRODUCTION

1These Applications, filed in July 2013 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”) allege that the respondents discriminated against the applicants because of family status and reprised against them contrary to the Code. Among other things, the Applications allege that the respondents discriminated against three minor children, C.G., E.G., and C.G., on the basis of family status when they excluded them from a ball hockey tournament because they were upset with the children’s parents (for allegations they made during the course of an Ontario Hockey Federation appeal from MWMHA’s decision not to permit one of the children, C.G., to play for another hockey organization).

2The respondents have requested that the Tribunal dismiss the Applications pursuant to s. 34(11) of the Code on the basis that the applicants have commenced a civil proceeding seeking a remedy in relation to the alleged Code infringements raised in the Applications (“Request to Dismiss”).

3The applicants have not responded to the Request to Dismiss and the time for doing so has now passed. Accordingly, this issue is to be determined based on the information before me.

REQUEST TO DISMISS UNDER S.34(11)

4Section 34(11) of the Code bars a person from making an Application to the Tribunal if a civil proceeding has been commenced seeking a remedy in respect of the alleged Code infringement.

34.(11) 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.

5In this case, the applicants have commenced a small claims court action against the respondents based on the same facts as the Applications. However, the civil action does not allege that the respondents infringed the applicants’ rights under the Code, nor does the civil action seek a remedy in respect of the alleged Code infringements upon which the human rights Applications are based. On the contrary, the civil action alleges that the respondents breached a contract with the applicants and/or induced a breach of contract, and that the respondents breached a fiduciary duty to the applicants. The remedies sought in the civil action relate to the alleged breach of contract, inducing breach of contract and breach of fiduciary duty.

6In order for an Application to be barred by s. 34(11), the civil claim must seek a remedy for the alleged infringement of the applicant’s rights under Part I of the Code. This is because, according to the wording in s. 34(11)(a) of the Code, a person’s right to file an Application with the Tribunal under s. 34 of the Code is barred only where s/he has filed a civil claim seeking a remedy “with respect to the alleged infringement” of his/her rights under the Code. The mere fact that the civil claim and the Application arise out of the same factual circumstances is not a sufficient basis upon which to conclude that an Application is barred under s. 34(11): Baghdasserians v. 674469 Ontario, 2008 HRTO 404; Baker v. Sears Canada, 2009 HRTO 1014; St. Louis v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1637; Moreland v. St. Michael’s Hospital, 2012 HRTO 2262; Roycroft v. Premier Salons Ltd., 2013 HRTO 573.

7The civil proceeding commenced by the applicants against the respondents does not allege that the respondents infringed the applicants’ rights under the Code or seek a remedy in respect of such alleged infringement. Accordingly, the Application is not barred pursuant to s. 34(11) of the Code. The Request to Dismiss is therefore denied.

8However, having reviewed these matters, it appears that it may be appropriate for the Tribunal to defer consideration of the Applications, pending completion of the civil proceeding.

DEFERRAL

9Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the 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. Deferral of an Application seeks to ensure that proceedings dealing with the same subject-matter do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

10The applicants are directed to provide the respondents and the Tribunal with their written submissions on whether the Applications should be deferred pending the completion of the civil proceeding within 14 days of the date of this Interim Decision. The respondents are directed to provide their written submissions on whether the Applications should be deferred to the applicants and the Tribunal within 14 days of receiving the applicants’ submissions.

11I note that the applicants did not file any submissions in respect of the respondents’ Request to Dismiss under s. 34(11) of the Code although they were directed to do so. If the applicants also fail to make submissions in respect of the deferral issue, the Tribunal may conclude that the applicants are not pursuing the Applications and dismiss them as abandoned.

12I am not seized.

DIRECTIONS

13The respondents’ Request to Dismiss pursuant to s. 34(11) of the Code is denied.

14The applicants are directed to provide the respondents and the Tribunal with their written submissions on whether the Applications should be deferred pending the completion of the civil proceeding within 14 days of the date of this Interim Decision.

15The respondents are directed to provide their written submissions on whether the Applications should be deferred to the applicants and the Tribunal within 14 days of receiving the applicants’ submissions.

16If the applicants fail to make submissions in respect of the deferral issue, the Tribunal may conclude that the applicants are not pursuing the Applications and dismiss them as abandoned.