Lanis v. MaxIT Healthcare Inc., 2015 HRTO 315

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Lanis

Applicant

-and-

MaxIT Healthcare Inc.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: March 13, 2015

Citation: 2015 HRTO 315

Indexed as: Lanis v. MaxIT Healthcare Inc.

WRITTEN SUBMISSIONS

Peter Lanis, Applicant

Self-represented

MaxIT Healthcare Inc., Respondent

Kate McNeill-Keller, Counsel

INTRODUCTION

1In his Application, the applicant alleged that the respondent discriminated against him because of citizenship contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, in his Application, he alleged that he was discriminated against when he was removed from a project and replaced with an American employee. This Interim Decision addresses the respondent’s request to dismiss or defer the Application due to a civil claim filed by the applicant.

Request for Dismissal

2The respondent has requested that the Tribunal dismiss the Application pursuant to s. 34(11) of the Code on the basis that the applicant has commenced a civil proceeding against it.

3The applicant issued a Statement of Claim against the respondent. In the Statement of Claim, he alleged breach of contract and wrongful dismissal. The civil claim seeks general damages as well as punitive damages for the breach of contract and wrongful dismissal. The claim does not seek a remedy for an infringement of the Code. The Statement of Claim does not reference the Code nor does it explicitly refer to discrimination.

4The respondent submitted that the Application should be dismissed as against it because the civil action is based on the same factual context as the Application and the remedies sought are similar. The applicant opposed the respondent’s dismissal request.

5Section 34(11) of the Code bars a person from making an Application to the Tribunal if a civil proceeding has been commenced seeking a remedy in respect of the alleged Code infringement.

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn.

6In order for an Application to be barred by s. 34(11), the civil claim must seek a remedy for the alleged infringement of the applicant’s rights under Part I of the Code. This is because, according to the wording in s. 34(11) of the Code, a person’s right to file an Application with the Tribunal under s. 34 of the Code is barred only where s/he has filed a civil claim seeking a remedy “with respect to the alleged infringement” of his/her rights under the Code. The mere fact that the civil claim and the Application arise out of the same factual circumstances is not a sufficient basis upon which to conclude that an Application is barred under s. 34(11). See Baghdasserians v. 674469 Ontario, 2008 HRTO 404; Moreland v. St. Michael’s Hospital, 2012 HRTO 2262; Roycroft v. Premier Salons Ltd., 2013 HRTO.

7The civil proceeding commenced by the applicant does not allege that the respondent infringed his rights under the Code or seek a remedy, explicitly or implicitly, in respect of such alleged infringement. Accordingly, the Application is not barred pursuant to s. 34(11) of the Code. The Request to Dismiss is therefore denied.

DEFERRAL

8In the alternative, the respondent requested that the Tribunal defer consideration of the Application pending the conclusion of the applicant’s civil claim due to the possibility of inconsistent findings. The applicant opposed this request on the basis that his civil claim will not deal with his bullying and harassment allegations that he made in his Reply.

9Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, or at the request of any party. Deferral of an Application seeks to ensure that proceedings dealing with the same subject-matter do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

10The Tribunal has deferred applications where parallel proceedings raise similar facts and issues. In such cases, the Tribunal has noted that concurrent proceedings not only increase the burden on the parties, they raise the possibility of inconsistent findings of fact and law. See, for example, Tsehaye v. English District Lutheran Church-Missouri Synod, 2010 HRTO 1396.

11Since both the Application and the civil claim arise out of the same facts, I find that there is a significant factual overlap in this case. Although the applicant has added bullying and harassment allegations to his Reply, I note that the Application is focused on the fact that he was removed from his position and replaced with an American. The applicant’s termination is also the focus of his civil claim. It is not clear what stage the civil proceeding is at, but it does appear that both proceedings are likely to run in parallel unless the Application is deferred. For these reasons, I grant the respondent’s request to defer the Application pending the conclusion of the applicant’s civil claim.

12The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the civil proceedings. It should be noted that a party who wishes to seek reactivation of the Application must file a request to reactivate no later than 60 days after the conclusion of the parallel proceeding. The Tribunal’s Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “Law, Rules and Policies”.

ORders

13For the reasons set out above, the Tribunal orders:

a. The respondent’s request to dismiss the Application under s. 34(11) of the Code is denied.

b. The respondent’s request to defer the Application pending the conclusion of the applicant’s civil claim is granted.

14I am not seized of this matter.