Rand v. Kashruth Council of Canada, 2016 HRTO 1215

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Morley Rand

Applicant

-and-

Kashruth Council of Canada

Respondent

DECISION

Adjudicator: Bruce Best

Date: September 15, 2016

Citation: 2016 HRTO 1215

Indexed as: Rand v. Kashruth Council of Canada

WRITTEN SUBMISSIONS

Morley Rand, Applicant

Self-represented

Kashruth Council of Ontario, Respondent

Israel Balter, Counsel

Introduction

1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on May 31, 2016. The applicant alleges that he was terminated from his employment due to age on April 23, 2010. He indicates that the last incident of discrimination occurred on June 10, 2012, though he provides no particulars.

2The applicant indicates that he also filed a wrongful dismissal action in Superior Court on July 22, 2011. The action also included allegations, in para. 49 of the statement of claim, that his termination was discriminatory due to age. These allegations are identical to the allegations raised in the Application.

3The applicant indicated that he had decided to “drop” his claim for age discrimination in the wrongful dismissal action because of the delays in that process, and has now filed this Application so that the Code issue can be addressed by the Tribunal. He has not formally amended his pleadings, but indicates that the respondent has been told on several occasions, prior to the filing of the Application, that the age discrimination claim is not being pursued in the action. He argues that the claim has therefore been “removed” from the civil matter.

4The applicant also took the position that, despite the Application being filed over 6 years after he was terminated, and almost 4 years after the date he indicated was the last incident of discrimination, that the Application was nonetheless timely as he believed the relevant date for the limitation period under s.34(1) of the Code was the date he filed the action. In the alternative he argued that in the circumstances the Tribunal would find that the delay was incurred in good faith for the purposes of s.34(2).

5The respondent does not dispute that the applicant has indicated he will not be pursuing the allegations of discrimination in the action. It argues, however, that the claim has not actually been amended, and as such the Application is still barred pursuant to s.34(11) of the Code.

6The respondent further argues that, even if the applicant had withdrawn his civil action prior to filing the Application, based on the Tribunal’s case law the Application should still be dismissed given the lengthy passage of time.

Analysis and Decision

Delay

7Sections 34(1) and (2) of the Code read as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8The Application is clearly out of time for the purposes of s.34(1) as the applicant did not actually apply to the Tribunal until May 31, 2016, more than 6 years after the applicant’s employment was terminated, and 4 years after the last alleged incident.

9The applicant argues that the time limit should be extended because he claims his civil action was filed within one year. I note that his civil action was in fact not filed until approximately 14 months after his employment was terminated. However, even accepting that the action was filed within one year of the last incident, I note that the Tribunal has consistently held that the fact that the Code issues were being pursued in a different forum will not in and of itself amount to good faith for the purposes of s.34(2). See Mu v. Cargill Foods, 2011 HRTO 846, at para. 42.

10The applicant suggests that that conclusion may be different where the other proceeding was a civil action, as opposed to another administrative proceeding such as a grievance, though he has not pointed to any authorities that would support that conclusion. I am not aware of such an argument having been pursued before the Tribunal before. However, it is unnecessary for me to determine this issue in any case, given my finding below that the Application is barred by operation of s.34(11).

Section 34(11)

11Section 34(11) of the Code reads as follows:

Where application barred

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.

12The applicant acknowledges that he has commenced a civil proceeding in the Superior Court where he is seeking a remedy for discrimination on the basis of age. His main argument is that as he no longer intends to pursue that claim, s.34(11) does not apply.

13I disagree. The case law is clear that an intention to not pursue a Code claim already pleaded in a civil action is not sufficient to avoid s.34(11). As stated by the Divisional Court in Grogan v Ontario (Human Rights Tribunal), 2012 ONSC 319 (QL) (Div. Ct.) (leave to appeal refused) (“Grogan”), at para 48:

Section 34(11), however, is not discretionary. It says that a person “may not make an application” in the face of an outstanding civil application. In other words, the Tribunal does not have the discretion to proceed when the applicant has also commenced a civil action involving the same alleged Code infringements. It does not matter that an applicant asserts the intention to withdraw the civil action …

14See also Visic v HRTO and University of Windsor, 2015 ONSC 7162 (Div. Ct.) (“Visic”) at para 34. Visic further held that even if a civil action had subsequently been withdrawn after the filing of an application with the Tribunal, it would not prevent the application from being dismissed under s.34(11). In support of this proposition, the court quoted with approval, at para. 31, from the Tribunal decision in Kupiec v. Starburst Coin Machines Inc., 2009 HRTO 75, at para 13:

. . . once a person claiming infringement has commenced a civil action claiming damages for the alleged human rights violation, that person has made a choice and section 34(11) of the Code is clear in stating that the person cannot then proceed with a complaint to this Tribunal unless he or she has first withdrawn the civil action. The legislation does not contemplate withdrawal of a portion of a civil action only after a responding party objects, as is the case here. On the contrary, it compels the applicant to make a decision on where to seek redress for alleged human rights violations before filing an application with the Tribunal. In the circumstances here, as long as the civil action was not withdrawn or amended prior to making the application, the application to the Tribunal will be barred.

15It is clear, based on the above, that the Tribunal has no jurisdiction to hear this Application, and on that basis it must be dismissed.

Order

16The Application is dismissed.