HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Roman Gorlach
Applicant
-and-
Alex Quazi
Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: Gorlach v. Quazi
1The applicant filed this Application August 26, 2013 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 services, goods and facilities.
2In the Form 1 (Application) filed by the applicant, he answered “no” in response to the question asking whether there has been a court action based on the same facts as this Application. The respondent filed a Form 2 (Response) in which he noted that the applicant had, in fact, initiated a proceeding at the Ontario Superior Court of Justice (Small Clams Court). The respondent provided a copy of the statement of claim prepared by the applicant in this proceeding on June 24, 2013, and issued by the court on June 25, 2013. The respondent seeks dismissal of the present Application pursuant to s. 34(11) of the Code.
3On November 28, 2013, the Tribunal delivered the Response and issued a Notice of Request to Dismiss the Application on the basis of s. 34(11) of the Code. Specifically, that there is an ongoing court proceeding arising out of the same facts in which the applicant is seeking an order under section 46.1 which has not been finally determined or withdrawn, or which has been settled or where the court has finally determined the issue of whether the right has been infringed.
4On December 11, 2013, the applicant filed a Form 11 (Response to a Request for an Order), in which he repeated his allegations.
DECISION
5I find that section 34(11) bars this Application from proceeding because the applicant commenced a civil suit based on the same facts and allegations and seeking similar remedies. Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
6Section 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.
7In both his civil claim and his Application, the applicant alleges that he was mistreated by the respondent when he attempted to take a course with the respondent to prepare for real estate licensing examinations. While the quantum of damages sought is different, in both matters, the applicant seeks a refund of fees paid and compensation characterized by the applicant as “moral compensation for wasting his time, money and nerves” and general damages.
8Based on a review of the Application and civil claim, it appears that the applicant relies on identical facts, alleges the same types of concerns and seeks similar remedies in the two legal proceedings.
9Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Smith v. Sears Canada, 2010 HRTO 1834, the Tribunal explained the analysis to be considered for section34(11) as follows:
The determinative question remains whether the applicant did, whether explicitly or implicitly, raise the Code and seek remedies for alleged breaches by way of the civil proceeding. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section34(11). If not, however, then the factual similarity between the two proceedings is not sufficient to dislodge the Tribunal’s jurisdiction over a matter that is otherwise properly brought before it.
10In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paras. 10-11, the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to preclude jurisdiction:
Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.
To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.
11In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, the Tribunal stated as follows:
If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.
12I am satisfied that the applicant’s small claims court action and this Application are based on the same facts and that both assert the same type of allegations, as well as seek similar remedies. In fact, the applicant’s narrative in the Application and the civil claim documentation make identical claims.
13If an application falls within the circumstances described in section 34(11) of the Code, the Tribunal is precluded from proceeding with the application because the language in section 34(11) is a mandatory bar. The overlap present in the civil proceeding and this Application is exactly what section 34(11) of the Code was intended to prevent.
14Accordingly, the Application is dismissed.
Dated at Toronto, this 18th day of September, 2014
“Signed by”
Jay Sengupta
Vice-chair