HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Chang Gen Hu
Applicant
-and-
Canadore College
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Hu v. Canadore College
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of place of origin and reprisal.
Background
2On April 16, 2012 the Tribunal issued a Notice of Intent to Dismiss the Application (NOID) on the basis that the applicant has also commenced a civil suit which appeared to be related to the same subject matter. The applicant was invited to make submissions. At this stage of the proceeding the Application had not been served on the respondent and no submissions on the NOID were sought from them. In his submissions in response to the NOID the applicant indicated that it was his preference to have his human rights issues dealt with by the Tribunal.
3In an Interim Decision dated May 31, 2012, I determined that it was plain and obvious that section 34(11) applied or whether it might be more appropriate to defer the Application pursuant to section 45 of the Code pending the conclusion of the civil proceeding and further submissions were sought from both parties on the Application of section 34(11) of the Code. Submissions were received from the parties on these issues. Although the applicant retained a representative to make submissions on his behalf in respect of these preliminary issues, he has continued to provide submissions on his own account and these have been considered as well.
4Before a determination of the issues raised in the Interim Decision was made, the applicant wrote to the Tribunal in late August 2012 and indicated that the civil proceeding had been dismissed. Due to administrative error on the part of the Tribunal this correspondence was not acknowledged until November 8, 2012 in a further CAD seeking clarification of the status of the civil proceeding from the parties. Contrary to the advice from August 2012, the applicant through his representative confirmed that the civil proceeding had not been dismissed or withdrawn. Although issued on February 14, 2011, it remains unserved.
5The question remains whether or not this Application should be dismissed pursuant to section 34(11) or alternatively deferred pursuant to section 45 pending the conclusion of the civil proceeding. In my view having regard to all of the circumstances it should be deferred pending the conclusion of the civil proceeding.
6Section 34(11) provides as follows:
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; 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 gives the courts the authority to order monetary compensation and restitution where a breach of the Code is found. Section 34(11) acknowledges the fact that the courts have been given clear jurisdiction to determine claims of human rights violations. However the Code requires that a person seeking to vindicate their rights must make a choice about where to proceed with their claim. Once the choice is made to proceed with a claim before the courts, section 34(11) is clear that the individual cannot then proceed with an application to this Tribunal unless they have already withdrawn the civil claim.
8This Application was filed on March 9, 2012. It appears to be self-drafted. Although there has been no request to amend the Application, it appears that there is some fluidity to the applicant’s allegations. For example the applicant in submissions received in October 2012, indicates that he is alleging a failure on the part of the respondent to accommodate his alleged disability related needs. These are not issues raised in the Application. For purposes of this Decision I will consider the Application as it was when filed with the Tribunal in March 2012.
9The human rights claims in the Application appear to be that the applicant’s complaints about a course or courses he was enrolled in were not responded to appropriately in whole or in part because he is an immigrant from China and second that unlike Canadian students who complained he was subject to a Trespass Notice in February 2010, which was re-issued on March 14, 2011. The applicant also states that the issuance of the Trespass Notice was a reprisal for his prior complaints. I observe at this point that some of the allegations date back to September 2009 and may be out of time.
10The statement of claim (Court File # CV-12-00446165-0000) was issued in Toronto on February 10, 2012, a month prior to this Application being filed with the Tribunal. It also appears to be self-drafted. It is much more detailed than the Application in describing the alleged inadequacies in the instruction the applicant received and what he perceived to be unfair treatment as he attempted to resolve these issues. In the statement of claim the applicant indicates that he is an immigrant from China and unlike the Application alleges that he is a person with multiple disabilities and sought accommodation. The applicant also alleges that the issuance and re-issuance of a Trespass Notice was unfair.
11As I previously noted in 2012 HRTO 1088 the civil claim is not framed by any particular cause of action however in submissions received from the applicant on October 12, 2012 he claims that the statement of claim alleges a breach of contract although there is no reference to contract in the statement of claim. There is also no reference to the Code and no explicit request for an Order pursuant to section 46.1 of the Code.
12There is little doubt that the civil claim covers the same factual ground as the Application and although not framed as a particular cause of action raises all of the same factual issues and more than are raised in the Application.
13The applicant by his representative argues that the civil claim while it relates to some of the factual issues as are raised in the Application raised no human rights claims as such. Rather it is in the nature of complaints of inadequate instruction provided by the respondent and unfairness in the way in which he was treated because he complained about this instruction. The applicant relies on Baker v. Sears Canada 2009 HRTO 1014. In separate submissions received from the applicant directly in October 2012 he indicates that the statement of claim alleges a breach of contract by the respondent. The respondent argues that the Application and the statement of claim raise all of the same complaints and are indistinguishable in that sense.
14I find that it would be most fair just and expeditious at this stage of the proceeding to defer this Application. In coming to this conclusion I have considered the fact that the statement of claim in its current state does not appear to link any of the treatments of the applicant to the plead facts of his ethnic background and immigration status. I have also considered the fact that the statement of claim appears incomplete and does not frame the dispute as any particular cause of action. In the circumstances I am not prepared to infer from the self-drafted statement of claim that I have no jurisdiction because section 34(11) applies and dismiss the Application.
15The civil claim does appear to contain an allegation that his disability related needs were not accommodated but that is not an issue raised in the Application at this stage so there is no section 34(11) concern in respect of that issue.
16On the other hand the factual issues raised in the two cases appear to be largely indistinguishable, except as noted previously, that the statement of claim may contain allegations of a failure to accommodate the applicant’s disability related needs. I find that it would be neither fair, just nor expeditious for the parties to engage in concurrent litigation of the same facts. In my view it is appropriate to defer this Application pending the conclusion of the civil proceeding. I come to this conclusion for the following reasons. Both are at an early stage but I note that the applicant commenced the civil proceeding first. The allegations in the statement of claim are more comprehensive. They cover entirely the same ground as the Application but in greater detail. The statement of claim also appears to engage additional issues not raised in the Application, in particular an alleged failure to accommodate a disability, which as I have indicated is not raised in the Application.
17The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the civil proceeding process.
18I am not seized of this case.
Dated at Toronto, this 10th day of January, 2013.
”signed by”
David Muir Vice-chair