Toker v. 1044765 Ontario Inc., 2014 HRTO 1159

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Can Toker

Applicant

-and-

1044765 Ontario Inc. o/a Kingsley Operations Inc. and Whitby Toyota Scion

Respondents

DECISION

Adjudicator: David Muir

Date: July 31, 2014

Citation: 2014 HRTO 1159

Indexed as: Toker v. 1044765 Ontario Inc.

WRITTEN SUBMISSIONS

Can Toker, Applicant

Timothy Gindi, 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”).

2In his Application the applicant advised that he had commenced a civil suit in relation to the facts in this case and asked that it be stayed pending the conclusion of the civil proceeding.

3On June 26, 2014 the Tribunal issued a Notice of Intent to Dismiss the Application because it appeared to be outside of the Tribunal’s jurisdiction to decide because the applicant had commenced a civil proceeding in respect of the same facts.

4The applicant did not respond to the NOID and the time for doing so has passed.

5Section 34(11) of the Code 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

6Amongst other relief the statement of claim issued on June 18, 2014 alleges wrongful dismissal and seeks damages for this breach. The statement of claim also seeks the following:

Damages in the amount of $100,000 in respect of violation of the Ontario Human Rights Code and in particular discrimination on the basis of disability.

7It 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. The statement of claim is somewhat more fulsome in elaborating Code related claims but in each the applicant alleges that he is a person with a disability and as a result experiences occasional panic attacks. In each he alleges that he experienced panic attacks in part because of mistreatment at work and in each the applicant alleges that he was dismissed without cause after a panic attack which required him to leave work early. In addition as is clear from the statement of claim the applicant is seeking damages as remedies for alleged violations of the Code.

8I 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. For these reasons the Application is dismissed.

9The Application is dismissed.