Human Rights Tribunal of Ontario
B E T W E E N:
Darren John
Applicant
-and-
Alexanian Law Firm
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: John v. Alexanian Law Firm
WRITTEN SUBMISSIONS
Darren John, Applicant
No one appearing
Alexanian Law Firm, Respondent
Shahen Alexanian, Counsel
1This Application, filed on January 11, 2016 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to employment because of race, colour, ethnic origin and reprisal.
2In the Application the applicant, who identifies himself as black, alleges that during his employment with the respondent he was consistently subject to explicit racist epithets. The applicant states that he was dismissed when he went to police after he received racist threats from another employee who is also the wife of the respondent's principal lawyer. The applicant states that he would not have been fired if he was not black.
3The respondent filed a Response in which it requested dismissal of the Application because the applicant filed a claim based on the same fact in a civil court requesting a remedy based on the alleged human rights violation.
4By letter dated March 9, 2016, the Tribunal directed the applicant to respond to the request to dismiss. On March 9, 2016, the applicant advised the Tribunal that he had filed a Notice of Discontinuance with the Court in November 2015.
5By Case Assessment Direction dated April 5, 2016, the Tribunal directed the respondent to file submissions addressing whether the Notice of Discontinuance has been filed with the Court and whether the action has been withdrawn.
6On April 14, 2016, the respondent filed submissions in which it submitted that the applicant's claim in civil court had not been discontinued. The respondent submitted that the applicant was required to bring a motion in Court to have the Action discontinued, but had not done so. The respondent pointed to a letter from its counsel in the Civil Action written in response to the Case Assessment Direction. Counsel advised that in a letter dated January 6, 2016 the applicant requested consent to discontinue certain aspects of his claims against Shahen Alexanian and his wife, failing which he would bring a motion. Counsel attached the applicant's letter. Counsel advised that consent was not given because the Notice of Discontinuance form prepared by the applicant was defective and that the applicant did not bring a motion for discontinuance. Counsel confirmed that the applicant's civil claim for discrimination was still alive.
7The applicant did not reply to the respondent's submissions, as the Case Assessment Direction permitted, and the time for doing so has passed.
Analysis and Decision
8Section 34(11) of the Code reads 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.
9Section 46.1 of the Code provides:
46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
10In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at paragraph 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.
11The purpose of section 34(11) is to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paragraphs. 10-11, the Tribunal concluded that a claim need not specifically plead section 46.1 of the Code for section 34(11)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.
12The applicant's civil action is a wrongful dismissal suit in which the applicant alleges that he was dismissed because of racism. Accordingly, the Civil Action clearly arises out of the same facts as the Application. The applicant did not specifically plead section 46.1 of the Code in the civil claim, but the applicant does claim general damages for a discriminatory dismissal. In light of the respondent's uncontradicted submissions, it appears that the Civil Action has not been discontinued.
13In these circumstances, I find that applicant's civil claim seeks remedies with respect to infringement of his rights under the Code, based on the same facts as this Application. Accordingly, section 34(11)(a) applies to bar this Application and it is dismissed.
Dated at Toronto, this 5th day of May, 2016.
"Signed By"
Douglas Sanderson
Vice-chair