Eldörse Mliscögen v. Deanna Durfy, 2015 HRTO 445

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eldörse Mliscögen Applicant

-and-

Deanna Durfy Respondent

DECISION

Adjudicator: Mark Hart

Date: April 7, 2015

Citation: 2015 HRTO 445

Indexed as: Mliscögen v. Durfy

APPEARANCES

Eldörse Mliscögen, Applicant Self-represented

Deanna Durfy, Respondent Gregory Roberts, Counsel

1This is an Application dated May 13, 2014 alleging discrimination with respect to occupancy of accommodation because of sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing in this matter was scheduled to proceed in St. Catharines on March 27, 2015. In preparation for the hearing in this matter, I became aware from the parties’ filings that a counter-claim had been initiated by the applicant in the context of a civil action for defamation commenced against the applicant by the respondent. I was concerned as to whether the counter-claim initiated by the applicant included a request for a remedy arising from the same allegations raised in the Application before this Tribunal, such that s. 34(11) of the Code may apply to bar the Application and deprive this Tribunal of jurisdiction. Accordingly, the Tribunal directed the parties to bring to the hearing a copy of the Statement of Defence and Counter-claim filed by the applicant against the respondent in the context of the civil action commenced by the respondent.

3After reviewing the Statement of Defence and Counter-claim and affording the parties an opportunity to make oral submissions before me, I made an oral ruling that the Application was dismissed pursuant to s. 34(11) of the Code and that this Tribunal lacked jurisdiction due to the counter-claim made by the applicant in the context of the civil action. I advised the parties that I would provide reasons in writing for this decision, which I am now doing.

4Section 34(11) of the Code provides as follows:

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

5In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at para. 6, the Tribunal described the operation of s. 34(11) 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.

6In 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 apply:

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.

7In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109 at para. 11, this Tribunal held that s. 34(11) of the Code operates as a bar to an Application whether the civil action is commenced before or after the Application is filed:

In my view, s. 34(11) applies to bar an application from proceeding where a civil action has been commenced both after and before the application. The word “make” is intended to refer to both the commencement and continuation of the application. . . . The purpose of the provision is to avoid duplication of court and HRTO proceedings alleging particular breaches of the Code, and there is no logical reason why the order in which the two proceedings were commenced should affect whether the Tribunal has jurisdiction.

8The Tribunal’s approach to the interpretation of s. 34(11) of the Code to extend to civil proceedings commenced after the filing of an Application with this Tribunal has been upheld by the Divisional Court as reasonable and rationally supportable: Grogan v. Ontario Human Rights Tribunal, 2012 ONSC 319 (Div. Ct.).

9As a result, even though the counter-claim in the instant case was initiated by the applicant in October 2014 after he already had filed his Application to this Tribunal, his Application may nonetheless still be barred by operation of s. 34(11).

10It also makes no difference that the applicant’s claim in court was made by way of a counter-claim in response to a civil action commenced by the respondent, rather than by way of a civil action commenced by the applicant himself. Section 34(11) does not require that the applicant have commenced the civil proceeding, but only that a civil proceeding “has been commenced” in a court in which the applicant is seeking a remedy for an alleged violation of a right protected under the Code.

11In the counter-claim as initiated by the applicant against the respondent, the applicant claims general damages as against the respondent due to her alleged discriminatory conduct. As part of the counter-claim, he repeats and relies upon the allegations as set out in his Statement of Defence, which includes allegations that the respondent terminated a tenancy agreement with the applicant because of his sexual orientation. These are the same allegations as raised in the Application filed with this Tribunal.

12While I appreciate that the counter-claim also makes additional allegations against the respondent that do not form part of the Application before this Tribunal, the fact that it includes the allegations set out in the Application is sufficient to bar this Application and to deprive this Tribunal of jurisdiction.

ORDER

13For the foregoing reasons, the Application is dismissed pursuant to s. 34(11) of the Code.