Goffe v. Dufferin-Peel Catholic District School Board, 2013 HRTO 2014

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wallis Goffe

Applicant

-and-

Dufferin-Peel Catholic District School Board and The Regional Municipality of Peel Police Services Board

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: December 5, 2013 Citation: 2013 HRTO 2014 Indexed as: Goffe v. Dufferin-Peel Catholic District School Board

WRITTEN SUBMISSIONS

The Regional Municipality of Peel Police Services Board, Respondent

Patricia G. Murray, Counsel

INTRODUCTION

1By application dated June 11, 2013, the applicant alleged that the respondents discriminated against him because of race, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("the Code"). Specifically, the Application centers at an incident that occurred at St. Louis Catholic Elementary School on June 11, 2012. The applicant alleged that the Dufferin-Peel Catholic District School Board discriminated against him when a custodian called the police on the suspicion that the applicant had been involved in a theft at another school. The applicant alleged that the Regional Municipality of Peel Police Services Board ("Police Services Board") discriminated against him when a police officer arrested him for the suspected theft.

Request for Dismissal

2The Police Services Board has requested that the Tribunal dismiss the Application pursuant to s. 34(11) of the Code on the basis that the applicant has commenced a civil proceeding against it.

3The applicant issued a Statement of Claim against the Police Services Board on June 20, 1013. In the Statement of Claim, he alleged false imprisonment, assault and battery as a result of the incident on June 11, 2012. The civil claim seeks general damages for assault, battery and false imprisonment, special damages, as well as aggravated and punitive damages. The claim does not seek a remedy for an infringement of the Code. The Statement of Claim does not reference the Code nor does it explicitly refer to discrimination. The only reference in the Statement of Claim to the applicant's race is a statement that the apparent cause for the arrest was that two black males had stolen property from another school. The Statement of Claim states that there was no basis in fact upon which to ground the applicant's arrest since the applicant is a black male and his assistant is a black female.

4The Police Services Board submitted that the Application should be dismissed as against it because the civil action is based on the same factual context as the Application and the remedies sought are similar. In the alternative, the Police Services Board requested that the Tribunal defer the Application until the conclusion of the civil proceedings since these proceedings deal with the same facts and issues raised in the Application.

5The applicant sought, and was granted, an extension of time to respond to the Police Services Board's request to dismiss. He has failed to file a Response to the request and the time for doing so has now passed.

REQUEST TO DISMISS UNDER S.34(11)

6Section 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.

7In this case, the applicant has commenced a civil claim against Police Services Board based on many of the same facts as the Application. However, the civil claim does not allege that the personal respondent 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 Application is based. The civil action alleges false imprisonment, assault and battery and seeks remedies for these causes of action.

8In 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). See Baghdasserians v. 674469 Ontario, 2008 HRTO 404; Moreland v. St. Michael's Hospital, 2012 HRTO 2262; Roycroft v. Premier Salons Ltd., 2013 HRTO. In all of the cases that the Police Services Board sought to rely upon, the applicant either referenced the Code or discrimination in his or her civil claim. In such a circumstances, the Tribunal has sometimes found that an applicant has implicitly sought remedies under the Code.

9The civil proceeding commenced by the applicant against the Police Services Board does not allege that the Board infringed his rights under the Code or seek a remedy, explicitly or implicitly, 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.

DEFERRAL

10Pursuant 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.

11The Tribunal has deferred applications where parallel proceedings raise similar facts and issues. In such cases, the Tribunal has noted that concurrent proceedings not only increase the burden on the parties, they raise the possibility of inconsistent findings of fact and law. See, for example, Tsehaye v. English District Lutheran Church-Missouri Synod, 2010 HRTO 1396

12Since both the Application and the civil claim arise out of the very same incident, I find that there is a significant factual overlap in this case, especially with the false arrest portion of the applicant's civil claim. It is not clear what stage the civil proceeding is at, but it does appear that both proceedings are likely to run in parallel unless the Application is deferred. For these reasons, I grant the Police Services Board's request to defer the Application pending the conclusion of the applicant's civil claim.

13The parties' attention is drawn to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the civil proceedings. It should be noted that a party who wishes to seek reactivation of the Application must file a request to reactivate no later than 60 days after the conclusion of the parallel proceeding. The Tribunal's Rules of Procedure are available on the Tribunal's website, www.hrto.ca under "Law, Rules and Policies".

ORders

14For the reasons set out above, the Tribunal orders:

a. The Police Services Board's request to dismiss under s. 34(11) of the Code is denied.

b. The Police Service Board's request to defer the Application is granted.

15I am not seized of this matter.