HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hossein Amini-Kouchesfahani
Applicant
-and-
Toronto Police Services Board
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Amini-Kouchesfahani v. Toronto Police Services Board
WRITTEN SUBMISSIONS
Toronto Police Services Board, Respondent
Antonella Ceddia, Counsel
1This Application alleges discrimination with respect to services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") and a hearing on the merits is scheduled on October 22 and 23, 2015.
2On July 23, 2015, the respondent filed a Request for an Order During Proceedings seeking the dismissal of the Application pursuant to s. 34(11) of the Code (the "RFOP").
3The applicant has not filed a Form 11 response to the RFOP and the time for doing so has passed.
Decision
4Section 34(11) of the Code states:
Where application barred
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
5Subsection 46.1(1) of the Code states:
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.
6In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109, the Tribunal found that section 34(11) applied whether the civil action was commenced before or after an application to the Tribunal.
7Subsections 34(11) and 46.1(1) provide that Courts in Ontario, in certain circumstances, have the jurisdiction to remedy allegations that a person's Code rights have been infringed. However, the Code specifically prohibits a person from seeking remedies, for human rights violations, in both Court and at the Tribunal. Where the applicant is seeking remedies under subsection 46.1(1), the applicant has to elect either to have allegations of Code violations addressed before the Tribunal or the Court.
8Section 34(11) goes to the jurisdiction of the Tribunal to accept and continue to process an Application that has been filed. In determining whether the Application is barred, the Tribunal will have to assess whether the applicant is seeking a remedy for an infringement of the Code pursuant to section 46.1(1). If so, the Tribunal will then have to determine whether the civil proceeding has been commenced, finally determined or withdrawn. If the requirements of subsection 34(11) are met, then the Application is barred and the Tribunal does not have the jurisdiction to continue to proceed with the Application.
9In this case, the respondent has attached to the RFOP an amended Statement of Claim filed by the applicant at the Ontario Superior Court in which the applicant specifically claims damages for the breach of his rights under the Code arising out of the same events that form the basis of the Application.
10I am satisfied therefore that the Application is barred pursuant to s. 34(11) and that the Tribunal no longer has jurisdiction over its subject-matter.
Order
11The Application is dismissed and as a consequence the hearing is cancelled.
Dated at Toronto, this 18th day of August, 2015.
"Signed by"
Geneviève Debané
Vice-chair