HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Isaac Shiao
Applicant
-and-
Toronto Police Services Board
Respondent
DECISION
Adjudicator: Jennifer Khurana
Indexed as: Shiao v. Toronto Police Services Board
APPEARANCES
Isaac Shiao, Applicant
Self-represented
Toronto Police Services Board, Respondent
Fred Fisher, Counsel
Introduction
1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondent filed a Request for an Order During Proceedings (“Request”) in which it asks the Tribunal to dismiss the Application under section 34(11) of the Code on the basis that the applicant commenced a civil proceeding. The respondent provided a copy of the Statement of Claim and submits that the applicant’s civil action raises the same facts and issues as the Application and seeks a remedy for alleged discrimination. Alternatively, the respondent seeks a deferral of the Application pursuant to section 45 of the Code. The applicant filed a response to the respondent’s Request opposing both the dismissal and deferral of his Application.
3By Case Assessment Direction (“CAD”) issued March 17, 2016, the Tribunal decided to hold a preliminary hearing to determine whether the Application is barred pursuant to section 34(11) of the Code and to hear submissions on the respondent’s alternative request to defer the Application pending the outcome of the civil proceeding. Both parties participated in the hearing.
4The applicant also filed a Request for an Order During Proceedings (“Request”) seeking to amend his Application to include allegations stemming from an incident involving the respondent on May 2, 2015 that were not included in his civil claim.
DECISION
5I find that section 34(11) of the Code bars this Application from proceeding because the applicant commenced a civil suit against the same respondent based on the same facts and allegations.
6Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
7In the Application, the applicant alleges that on December 27, 2014, he called the police after a man threw a rock at the window of his place of residence. He alleges that the police discriminated against him on the grounds of disability or perceived disability by failing to properly investigate the incident and calling a mental health crisis team to his residence. The applicant seeks $20,000 in compensation for property damage.
8The respondent provided a copy of the Statement of Claim that the applicant filed with the Ontario Superior Court on October 9, 2015, prior to the filing of his Application. The applicant’s civil action raises multiple claims and refers to incidents involving the respondent that allegedly occurred from 2010 to January 2015. These include the December 2014 incident that is the central allegation in the Application.
9While the applicant does not explicitly cite the Code in his civil claim, the Tribunal has found that this is not necessary for an application to be barred. See for example, Al-Ghaithy v. University of Ottawa, 2012 HRTO 654.
10The applicant does make multiple references to the Charter of Rights and Freedoms (the “Charter”), including alleged breaches of his section 15 equality rights. The substance of the claim relating to the December 2014 incident is the same, namely that the applicant alleges that he was treated in a discriminatory fashion by the police because of his perceived mental illness. He seeks damages for the alleged infringement of his rights as well as for property damage and losses related to other alleged incidents.
11In 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.
12In 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.
13In 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. See also Grogan v. Toronto District School Board, 2011 HRTO 954, aff’d 2012 ONSC 319 (Div. Ct.), and Visic v. University of Windsor, 2015 ONSC 7162 (Div. Ct.).
14At the preliminary hearing, the applicant indicated that he is proposing an amendment to his Statement of Claim to include other sections of the Charter, and also to address additional incidents involving the respondent. The respondent indicated that while it has sought to strike some of the civil claim, the applicant’s proposed amendment to his civil claim makes explicit reference to the Code and seeks a remedy under the Code. This reference to the Code was confirmed after the hearing when counsel for the respondent forwarded a copy of the amended statement of claim to the Tribunal for my review.
15I find this Application to fit squarely within the provisions of section 34(11) because the Application and the civil suit are concurrent proceedings that raise substantially the same allegations plead in the Application and seek remedies for some of the same alleged human rights violations. While the applicant argued at the hearing that the focus of his civil claim was on the respondent’s alleged negligence and not on the denial of his human rights, there are several references in the civil claim to the Toronto Police Services Board or its agents’ alleged unfair treatment of the applicant.
16Further, section 34(11) is an absolute bar to jurisdiction and an application cannot be processed by the Tribunal regardless of the intentions and litigation strategies of the parties in the civil suit. See Al-Ghaithy, above, and Visic, above.
17I find that the Application is barred by section 34(11) and it is dismissed.
18As I have found that the Application is barred by section 34(11), I need not address the respondent’s alternative request for deferral.
Request to amend
19The applicant filed a Request for Order During Proceedings seeking to amend his Application to add allegations relating to an incident involving the respondent that occurred on May 2, 2015. He seeks to remove reference to the December 2014 incident so that there will be no duplication between the proceedings.
20The applicant advised that his civil proceeding is estimated to take three to five years and that he has no other Application before the Tribunal to which he could add the allegations. He is not represented by counsel and submits that he does not understand the law or why he cannot amend his Application to take out the parts that are mentioned in his civil claim and to restrict the Application to the May 2, 2015 incident that is not part of the other proceeding.
21I acknowledge the challenges that the applicant faces; however, the wording of section 34(11) is absolute. Given that the Tribunal does not have jurisdiction to proceed with the Application, I also do not have jurisdiction to consider the proposed amendment and make no order with respect to the applicant’s Request.
ORDER
22The Tribunal orders as follows:
a. The Application is dismissed.
b. I make no order with respect to the applicant’s Request.
Dated at Toronto, this 21st day of October, 2016.
“Signed by”
Jennifer Khurana
Vice-chair```