HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nadire Atas Applicant
-and-
Sutton Group Realty Systems and Trevor Schultz Respondents
AND BETWEEN:
Nadire Atas Applicant
-and-
MCS Consultants and Devonsleigh Paralegal Services Respondents
INTERIM DECISION
Adjudicator: Paul Aterman Date: September 15, 2014 Citation: 2014 HRTO 1363 Indexed as: Atas v. Sutton Group Realty Systems
WRITTEN SUBMISSIONS
Nadire Atas, Applicant Self-represented
1The applicant has brought two Applications. The Application in 2014-16985-I alleges discrimination with respect to employment because of disability and record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged. The Application in 2014-16986-I alleges discrimination in the provision of services because of disability.
2The applicant worked as a real estate agent for the respondents in 2014-16985-I. The Application seems to be about the manner in which the applicant’s employment with the respondents came to an end.
3It appears from reading a Statement of Claim in a pending Superior Court of Justice civil action that was appended to the Application in 2014-16986-I that the respondents in 2014-16986-I were or are acting as counsel for the defendants in two Small Claims Court actions launched by the applicant. This Application alleges that certain actions taken by the respondents in the course of defending the Small Claims Court actions were discriminatory.
4The respondents to both Applications have not yet been provided with the Applications and have not yet had an opportunity to respond to the allegations.
5The pending Superior Court civil action I refer to above has been brought by the applicant. It names all of the respondents in both Applications as defendants, along with other individuals.
6On July 23, 2014 the Tribunal sent a Notice of Intent to Dismiss (“NOID”) to the applicant in relation to each Application. The two NOIDs direct the applicant to make submissions as to why each Application should not be dismissed on the ground that the Tribunal has no jurisdiction to deal with an Application where the applicant has started a parallel civil proceeding that alleges the same Code violation that is set out in the Application and is seeking that the court find a violation of the Code.
7The applicant’s submission consists of a single line that asserts that the issues in the civil action are different from the issues in the Applications.
8Section 34 (11) of the Code provides:
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.
9Section 46.1 reads as follows:
46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
10A reading of the Statement of Claim shows that there may be a significant overlap of facts and issues in the civil action and the allegations in both Applications. However, the Statement of Claim makes no mention of the Code, nor are there any allegations of discrimination. There is also no request for a remedy for alleged Code violations. The action appears to allege various instances of what might be tortious conduct and breach of contract.
11Absent any indication that the applicant is asking the Superior Court to make findings of discrimination and to grant a corresponding remedy, I conclude that s.34(11) does not apply and the Tribunal has not lost jurisdiction over the Applications in 2014-16985-I and 2014-16986-I. As a result they can proceed in the Tribunal’s process.
12However, because there appears to be a considerable overlap of facts and issues, I believe the Tribunal should look at whether consideration of the Applications should be deferred until completion of the civil action.
13There is another preliminary matter which needs to be dealt with. In the Application in 2014-16986-I the applicant asks that that Application be heard at the same time as 2014-16985-I. The applicant does not explain why. The allegations in the two Applications are in relation to different social grounds. It is also not clear from reading the Applications and the Statement of Claim how the alleged of conduct of the respondents in one Application is linked to the alleged conduct of the respondents in the other Application.
14In order to enable the parties to address these issues the Registrar is requested to provide each respondent with a copy of both Applications. The respondents cannot make informed submissions on the issues below unless they see what is alleged in each Application. All parties are directed to provide submissions in writing in relation to the following issues:
Whether consideration of either or both Applications should be deferred until the civil action has been completed, in accordance with Rule 14.1 of the Tribunal’s Rules of Procedure; and
Whether the Applications in 2014-16985-I and 2014-16986-I should be consolidated and heard together, in accordance with Rule 1.7(d) of the Tribunal’s Rules of Procedure.
15In relation to the issue of deferral, the parties may wish to consult the Tribunal’s decision in Baghdasserians v. 674469 Ontario, 2008 HRTO 404. In relation to the consolidation question, they may wish to consult the Tribunal’s decision in Persaud v. Toronto District School Board, 2008 HRTO 25. These are not the only decisions of the Tribunal on those issues, but they are commonly referred to.
16The Tribunal’s Rules of Procedure can be found at www.hrto.ca and the Tribunal’s decisions can be found at www.canlii.org.
17At this stage the respondents need not file a Response to the Application in which they have been named as a respondent. The Tribunal will first decide the issues of deferral and consolidation before requiring the respondents to file a Response.
order
18The Registrar is requested to provide each respondent with a copy of the Applications in 2014-16985-I and 2014-16986-I.
19Within 21 days of the date of this Interim Decision, the parties are to provide to each other and the Tribunal their submissions on:
Whether consideration of either or both Applications should be deferred until the civil action has been completed, in accordance with Rule 14.1 of the Tribunal’s Rules of Procedure; and
Whether the Applications in 2014-16985-I and 2014-16986-I should be consolidated and heard together, in accordance with Rule 1.7(d) of the Tribunal’s Rules of Procedure.
Dated at Toronto, this 15th day of September, 2014.
“signed by”
Paul Aterman Vice-chair