Tomasz Raba v. David Griffith and Toronto Police Service, 2015 HRTO 981

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tomasz Raba

Applicant

-and-

David Griffith and Toronto Police Service

Respondent

DECISION

Adjudicator: David Muir

Date: July 23, 2015

Citation: 2015 HRTO 981

Indexed As: Raba v. Griffith

1This Application was scheduled for a preliminary hearing on July 6, 2015. The preliminary hearing was scheduled because it appears that this Application makes essentially the same allegations as were made in an earlier Application which was dismissed by the Tribunal.

2The respondents forwarded a Statement of Claim, filed in Ontario Superior Court of Justice. It makes the same allegations against these respondents as were made in the Applications.

3The preliminary hearing to consider whether the Application should be dismissed as an abuse of process was cancelled and in a Case Assessment Direction (“CAD”) issued on July 4, 2015, the applicant was directed ti make written submissions about whether the Application should be dismissed under section 34(11) of the Code because the applicant has commenced a civil action making the same allegations and seeking similar remedies. The applicant was also advised that if he did not make submissions by July 17, 2015, the Application may be dismissed as abandoned.

4The applicant has not responded to the July 4, 2015 CAD; it appears that the applicant has abandoned this Application and accordingly it is dismissed.

5Although not necessary to do so I also find that the Application must be dismissed pursuant to section 34(11) of the Code which provides as follows:

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

6Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings seeking remedies for 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 an applicant’s decision to raise the Code and seek remedies for its violation in a court action: Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.

7The Statement of Claim does not expressly refer to the Code. However, the Tribunal has held that an Application may be dismissed under section 34(11) if the allegations in the Statement of Claim are the same or similar to the allegations in the Application and when the remedial requests are similar. (See, for example, Al-Ghaithy v. University of Ottawa, 2012 HRTO 654). Having reviewed the Statement of Claim I am satisfied that in substance it raises the same issues as in the Application. The factual circumstances are very generally described but clearly relate to this and several prior Applications filed by the applicant. It is very carefully drafted to avoid reference to the Code but includes references to section 79 and 80 of the Police Services Act and sections 7, 12 and 15 of the Charter of Rights and Freedoms. Throughout the Statement of Claim the applicant makes allegations of differential treatment and mistreatment because of his ethic background.

8In my view it is clear that the statement of claim is in substance indistinguishable from this and others of the applicant’s Applications. Accordingly it must also be dismissed pursuant to section 34(11) of the Code.

9The Application is dismissed.