Rinaldi v. Paragon Security, 2017 HRTO 1370

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dion Rinaldi

Applicant

-and-

Paragon Security

Respondent

DECISION

Adjudicator: Mark Hart

Date: October 17, 2017

Citation: 2017 HRTO 1370

Indexed as: Rinaldi v. Paragon Security

APPEARANCES

Dion Rinaldi, Applicant

Self-represented

Paragon Security, Respondent

Daniel Chodos, Counsel

1This is an Application dated May 5, 2016 alleging discrimination with respect to services because of ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant resides in a condominium building in downtown Toronto. He alleges that on April 27, 2016, a security guard working at his condominium building followed him around the common elements of the building and for a kilometer outside the building. He alleges that while following him, one of the security guards made the following statements, which are alleged to constitute discrimination and/or harassment in violation of the Code: “I’m a Canadian citizen, what are you talking about? You are not even from here – you are from England or something, man. What the hell”; “You are a pathetic human being”; and “Are you out of your mind? Go back to England, man”. The applicant had moved from England to Canada, and self-identifies as “Caucasian with parents and grand-parents with ethnic and national origin”.

3While the Application on its face also references events that are alleged to have occurred on February 25, 2016, the applicant clarified in his Reply that the Application “only relates to April 27, 2016”.

4Shortly after filing his human rights Application, the applicant also commenced a civil action in Small Claims Court, which includes allegations in tort relating to the alleged events of April 27, 2016. He also filed a complaint with the Private Security and Investigative Services Board (“PSISB”) against the security guard who is alleged to have made the discriminatory comments toward him on April 27, 2016.

5By Request for Order dated February 3, 2017, the respondent seeks dismissal of the Application pursuant to s. 45.1 of the Code on the basis of the Small Claims Court action and the proceeding before the PSISB.

6By Case Assessment Direction (“CAD”) dated April 11, 2017, this Tribunal directed that a preliminary hearing be held by teleconference to hear oral submissions from the parties as to whether the Application should be dismissed on the basis of the other proceedings.

7The preliminary hearing proceeded before me on July 27, 2017, at which time I heard the parties’ oral submissions. At the preliminary hearing, I also raised with the parties the issue of whether the Application should be dismissed as an abuse of process, and heard oral submissions from the parties on this point as well. I also have considered all material filed with this Tribunal for the purpose of the preliminary hearing.

ANALYSIS AND DECISION

8This Tribunal has held that it is an abuse of process for an applicant to deliberately withhold allegations of a violation of her or his rights under the Code in the context of another proceeding and then to bring a separate application before this Tribunal, when the allegations could have been raised in another proceeding that dealt with essentially the same underlying events: see Asiamah v. Olymel S.E.C. / L.P., 2009 HRTO 1750; Henderson v. Mutech Fire Protection Co. Ltd., 2010 HRTO 2153; Manhas v. A.O. Smith Enterprises Ltd., 2010 HRTO 659; Levkivska v. Peel Condominium Corporation No. 231, 2016 HRTO 270; Gholipour v. Saint Elizabeth Health Care, 2016 HRTO 830; Weiher v. Cancelliere, 2017 HRTO 287.

9This principle is founded on the basis that an applicant is not entitled to “split its case” in two separate proceedings and thereby unfairly expose the respondent to further litigation and violate the principles of judicial economy and the integrity of the administration of justice.

10The Small Claims Court action commenced by the applicant expressly states that it is filed in response to the actions of the respondent’s employees on a number of dates, including April 27, 2016. The applicant’s claim expressly alleges that the actions of the respondent’s employees on dates including April 27, 2016 “were extreme and outrageous and caused the [applicant] to suffer mental distress”.

11The applicant filed with this Tribunal, submissions that he had prepared in the context of the Small Claims Court action, in which he purports to clarify the scope of the allegations raised in his civil claim. In these submissions, the applicant reviews the alleged events of April 27, 2016 and makes express reference to one of the three alleged comments that form the basis of the Application before this Tribunal. The applicant also makes specific reference to his human rights Application in these Small Claims Court submissions, where he states that he has “excluded all the evidence related to that application from these submissions” and that his civil claim “is not seeking remedies for breaches of the Human Rights Code”.

12There is no doubt that a person is entitled to bring a civil action and also proceed with a human rights application in certain circumstances. The most common example of this occurs when a person’s employment is terminated. The person can bring a civil action for wrongful dismissal seeking reasonable notice damages, and can also proceed with a human rights application alleging that discrimination was a factor in the termination of employment. These two proceedings raise different legal and factual issues, and provide different potential remedies.

13What a person cannot do is to take one event or transaction, such as the applicant’s allegations regarding the events of April 27, 2016, and hive off some aspects of that event or transaction as the basis of one proceeding, such as a civil claim, and leave other aspects of this very same transaction to form the basis for a human rights application. It is this kind of case-splitting that offends the principles of judicial economy and the integrity of the administration of justice.

14In my view, this is precisely what the applicant has done in the instant case. The comments alleged to have been made to the applicant by the security guard which form the basis of the human rights Application are part of the very same event or transaction that occurred on April 27, 2016 that forms the basis of his civil claim. In order for the applicant to give evidence in the civil claim regarding the events of April 27, 2016 and not duplicate his allegations raised in the human rights Application, the applicant would essentially have to skip over some portions of this very same event. This in my view is a classic example of case splitting and thereby constitutes an abuse of process.

15I am aware that the parties have settled the civil action, and that in the correspondence between them leading to the settlement, the applicant was careful to distinguish between what it would take to settle the civil claim only and what it would take to settle everything, including the human rights Application. However, in deciding to settle the civil claim, the applicant himself took the risk that the human rights Application would be determined to be an abuse of process and therefore dismissed.

16As a consequence, this Application is dismissed as an abuse of process due to the allegations raised in the Small Claims Court action. Given that determination, it is not necessary for me to consider whether the Application also should be dismissed pursuant to s. 45.1 of the Code due to the applicant’s PSISB complaint.

17I also do not need to consider certain Requests for Order which were filed by the parties in the period prior to the preliminary hearing. In particular, the applicant filed a request to amend his Application to include a new allegation arising out of an incident that is alleged to have occurred on January 24, 2017. This request is now moot, as there is no longer any existing Application which is capable of being amended. The applicant, of course, is free to commence a new Application relating to this more recent incident if he so chooses. However, it is not clear to me from the applicant’s submissions in support of his amendment request that the security guard at issue in relation to the alleged January 24, 2017 incident (who is the same security guard who is alleged to have made the impugned comments on April 27, 2016) could be regarded as providing the applicant with a “service” within the scope of the Code on January 24, 2017, given that by that time he had been re-assigned out of the applicant’s building and was in a vehicle outside the building.

ORDER

18For the foregoing reasons, the Application is dismissed as an abuse of process.