Chesebrough v. Conestoga Meat Packing Ltd., 2014 HRTO 1096

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Chesebrough

Applicant

-and-

Conestoga Meat Packers Ltd.; Diane McMahon; Melinda Mason: Pauline Zwires; Chris Twitchet; Tony Morreale; John Jurcic and Carlos Buhalo

Respondent

DECISION

Adjudicator: David Muir

Date: July 25, 2014

Citation: 2014 HRTO 1096

Indexed as: Chesebrough v. Conestoga Meat Packing Ltd.

WRITTEN SUBMISSIONS

William Chesebrough, Applicant

Self-represented

Conestoga Meat Packing Ltd.; Diane McMahon; Melinda Mason: Pauline Zwires; Chris Twitchet; Tony Morreale; John Jurcic and Carlos Buhalo, Respondent

Rishi Bandhu, Counsel

1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This case is scheduled to be heard on October 2 and 3, 2014. On June 23, 2014 the respondents filed a Request for Order During Proceedings (Request) seeking the dismissal of the Application pursuant to section 34(11) of the Code which provides as follows:

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

3The respondent attached to the Request a statement of claim. The applicant responded to the Request on July 4, 2014.

4For the following reasons, the Application is dismissed.

5Amongst other relief the statement of claim issued on June 14, 2014 alleges breach of contract and wrongful dismissal and seeks aggravated and exemplary damages for these breaches. The statement of claim also seeks the following:

Damages for breach of the Human Rights Code, R.S.O. 1990 c. H.19

In the alternative, a mandatory directing that the Defendant reinstate the Plaintiff in his employment in accordance with the provisions of Human Rights Code, R.S.O. 1990 c. H.19

6It is clear and in any event it is not disputed that the facts and issues alleged in the statement of claim are the same as those raised in this Application. In addition as is clear from the statement of claim the applicant is seeking damages and/or reinstatement to his employment as remedies for alleged violations of the Code. The only substantial difference in the pleadings to this stage is the identity of the respondents/defendant in that the applicant had not named any of the individual respondents as defendants in the civil suit although they are identified in the narrative of it and allegations are made against each of them.

7The applicant argues that the request is premature as the defendants/respondents have not yet filed a defence. There is no requirement in section 34(11) that a statement of defence has been filed. I find that the requirements of section 34(11) are met here in that a civil proceeding has been commenced where damages are sought for alleged violations of the Code and that proceeding has not been finally determined, withdrawn or settled.

8I have considered whether or not the fact that the civil proceeding was commenced after the Application is of any significance and find that it does not. In that regard the respondent referred me to the Tribunal’s Decision in Chau v. Re/Max Realtron Realty Inc. 2012 HRTO 1207, reconsideration refused 2013 HRTO 898.

9For these reasons the Application is dismissed

Orders

10The Application is dismissed.