Regan v. Chappell Partners LLP, 2016 HRTO 677

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robyrt Regan

Applicant

-and-

Chappell Partners LLP and Ross Anderson

Respondents

DECISION

Adjudicator: Laurie Letheren

Date: May 18, 2016

Citation: 2016 HRTO 677

Indexed as: Regan v. Chappell Partners LLP

WRITTEN SUBMISSIONS

Robyrt Regan, Applicant

Self-represented

Chappell Partners LLP and Ross Anderson, Respondents

Laura Cassiani, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of family status and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On October 13, 2016, the respondents filed a Request for Dismissal ("Request") of the Application on the basis that it was barred under section 34(11) of the Code because the applicant had filed a Statement of Claim which was based on the same facts as those alleged in the Application and in which the applicant plead that the respondents' alleged activities were a breach of the Code.

3In response to the Request, the applicant filed an Amended Statement of Claim in which all references to alleged breaches of the Code had been struck. In addition, the Amended Statement of Claim contained a paragraph stating that the applicant was not seeking any damages in the civil action for any breaches of the Code.

4On December 9, 2015, Tribunal issued Interim Decision 2015 HRTO 1660 which found that since that the Statement of Claim has been amended there was no overlap in the allegations between the Statement of Claim and the Application. The Tribunal determined that the Application was not barred by section 34(11).

5On January 8, 2016, the respondents filed a Request for Reconsideration of the Interim Decision and made a renewed Request to Dismiss the Application ("Request").

6The Request for Reconsideration has been addressed by the Tribunal in a separate decision 2016 HRTO 676.

7The basis for the respondent's renewed Request was the Divisional Court's decision in Visic v. HRTO and University of Windsor, 2015 ONSC 7162, issued after the release of the Interim Decision and its impact on the interpretation of section 34(11). In addition, following the release of the Interim Decision, the applicant filed a Response to Demand for Particulars in the civil action which confirmed he is pursuing damages based on Code breaches. Paragraph 4(x) of the Response to Demand for Particulars, states that the alleged acts of misconduct by the defendants include, "Failing to provide a harassment and discrimination-free workplace, contrary to the Ontario Human Rights Code."

8The applicant opposes the Request. The applicant submits that this Application and the civil action are not duplicative and the civil action does not involve a claim of breach of rights under the Code.

Analysis and Decision

9Section 34(11) of the Code provides:

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.

10The Divisional Court's recent decision in Visic v. HRTO and University of Windsor, 2015 ONSC 7162, makes it clear that the circumstances in this Application engage section 34(11) and therefore, the Tribunal has no discretion to allow the Application to proceed.

11In the Interim Decision the Tribunal denied the Request to Dismiss on the basis that the applicant had removed any reference to allegations of Code breach from the Amended Statement of Claim and, therefore, section 34(11) did not apply to bar the Application.

12However the applicant's Response to Demand for Particulars makes it clear that he is in fact continuing to pursue damages for alleged Code breaches in his civil action.

13As was confirmed in paragraph 34 in Visic above, once a person has commenced a civil action claiming damages for Code violations, that person cannot proceed with an application to the Tribunal. Quoting from the Divisional Court's decision is Grogan v Toronto District School Board, 2012 ONSC 319, and from the Tribunal decision in Kupiec v. Starburst Coin Machines, 2009 HRTO 75, the Divisional Court states at paragraph 34 of Visic:

The Tribunal does not have the discretion to proceed when the applicant has also commenced a civil action involving the same alleged Code infringements… In short, s. 34(11) requires an applicant to choose between the Tribunal and a (concurrent) civil action.

14Section 34(11) bars the Tribunal from allowing this Application to proceed.

15For these reasons, the Application is dismissed.

ORDER

16The Application is dismissed.