Tomasz Raba v. University Health Network and Dr. Joel Yaphe, 2014 HRTO 1695

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tomasz Raba

Applicant

-and-

University Health Network and Dr. Joel Yaphe

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: November 24, 2014

Citation: 2014 HRTO 1695

Indexed as: Raba v. University Health Network

1This is an Application filed on January 27, 2014 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H. 19 as amended (the “Code”).

2This Decision deals with a Request for an Order During Proceedings filed by the respondent University Health Network in which it seeks dismissal of the Application under s. 34(11) of the Code.

3The Application alleges that the respondents discriminated against the applicant on the basis of race, ancestry, place of origin, citizenship and disability in the manner in which they treated him when he went to Toronto Western Hospital for treatment. The applicant alleges that, among other things, the personal respondent denied the applicant medical attention and that he was forcibly removed from the hospital by the police after a police officer kicked him in the ribs. The applicant seeks $1,000,000.00 in general damages.

4On or about July 31, 2014, the applicant filed a civil action against the Toronto Western Hospital, and 2 other hospitals, seeking damages for, among other things, the treatment he received at Toronto Western Hospital including the treatment by the personal respondent. The facts as stated in the civil action relating to Toronto Western Hospital are almost identical to the facts as stated in the human rights Application although the legal basis of the claim is different. The civil action claims violations of the Public Hospitals Act (acting in “bad faith”) and violations of sections 7 and 12 of the Canadian Charter of Rights and Freedoms. In the civil action the applicant claims $1,000,000.00 in general damages as against Toronto Western Hospital and a further $1,000,000.00 in punitive damages.

STATUTORY PROVISIONS

5Section 34(11) of the Code provides:

A person who believes that one of his or her rights under Part 1 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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:

If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part1 of another party to the proceeding, the Court may make either of the following orders, or both:

1. 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.

2. 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 1.

DECISION

7I find that s. 34(11) bars this Application from proceeding because the applicant commenced a civil suit based on the same facts and allegations in which he seeks similar remedies.

8In both his civil claim and this Application, the applicant alleges that he was mistreated by the respondents when he was denied medical treatment and evicted from Toronto Western Hospital. In both matters the applicant seeks $1,000,000.00 in general damages.

9Based on a review of the materials, including a copy of the Statement of Claim and the Application filed with the Tribunal, I find that the applicant relies on the same facts, alleges the same types of concerns and seeks similar remedies in the two legal proceedings.

10The applicant has not specifically made a claim in his civil action for a remedy under section 46.1 of the Code, however, a civil action claim need not specifically plead s. 46.1 for the s. 34(11) to apply. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11 the Tribunal discussed the purpose of section 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 the 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.

11The Tribunal has also determined that s. 34(11) may bar an application regardless of whether the civil claim was commenced before or, as in this case, after the application: Borden v. Toronto Grace Health Centre, 2010 HRTO 1109.

12I am not persuaded that the Application should proceed on the basis that there are different parties in the two proceedings, namely that the personal respondent is not a defendant in the court action. The language in s. 34(11) states that a person who believes that one of his or her rights under Part 1 of the Code has been infringed may not make an application with respect to the right. The focus of s. 34(11) is therefore on the “right” that has been infringed and not on which party infringed the right. The Tribunal has addressed this issue in Hallett v. Grey Bruce Health Services, 2009 HRTO 403, at para. 16 in which it concluded that the existence of different parties does not affect the application or interpretation of section 34(1):

Having found that the provisions of s. 34(11) apply in these circumstances, the question arises whether it makes any difference that there are two personal respondents to the GBHS Application, Campbell and Greaves, who are not named as defendants in the civil action. In my view, this does not make a difference. Section 34(11) states that a person may not file an application with respect a right that she believes has been infringed if the person is seeking an order in a civil action “with respect to the alleged infringement”. I have found that the GBHS Application alleges and infringement of the applicant’s rights under the Code on essentially the same basis on which she is seeking a remedy in the civil action. As a result, any application that the applicant attempted to file against the respondents in respect of the alleged violation of the same right would be barred, whether or not the respondents were also named as defendants in the civil action.

CONCLUSION

13I am satisfied that the applicant’s civil 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.

14If 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 s. 34(11) is a mandatory bar. The overlap present in the civil proceeding and this Application is exactly what s. 34(11) of the Code was intended to prevent.

15Accordingly, the Application is dismissed