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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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**B E T W E E N:**
Jacob Thottan
Applicant
-and-
Skywave Mobile Communications Inc.
Respondents
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**DECISION**
______________________________________________________________________
**Adjudicator:** David Muir
**Date:** August 16, 2017
**Citation:** 2017 HRTO 1070
**Indexed as:** Thottan v. Skywave Mobile Communications Inc.
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[1] This is an Application filed under section 34 of Part IV of the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html), R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the employment because of colour, ethnic origin and race.
[2] In Interim Decision [2017 HRTO 832](https://www.minicounsel.ca/hrto/2017/832) issued on July 10, 2017 amongst other matters I directed that the applicant deliver and file a Statement of Claim which the applicant was said to have served on the respondent which raised some or all of the issues raised in this case.
[3] The applicant filed a Statement of Claim identifying himself as plaintiff and the respondent as defendant. After reviewing the Statement of Claim I directed the parties to make submission about the Tribunal’s jurisdiction to deal with this case because of [section 34(11)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec34subsec11_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) which 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
[4] The parties have made their submissions. For the reasons that follow the Application is dismissed.
[5] The applicant argues that the fact that he began the civil proceeding after he filed this Application is determinative of the issue. He also argues that if there had not been lengthy delays in this case it would have concluded prior to him commencing his civil suit.
[6] The application is dismissed.
[7] The allegations in the Statement of Claim are indistinguishable from those in the Application. In both the applicant alleges that he was paid less than others because of is colour, ethnic origin and race. In both he alleges that he was dismissed from employment for discriminatory reasons and that the respondent engages in systemic discrimination. In both he seeks damages for these actions and in the statement of claim specifically pleads the [Ontario Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html).
[8] The applicant argues that the Tribunal has not lost jurisdiction over this case because the Statement of Claim was issued after the Application had been filed. I do not agree. As pointed out by the respondent this issue has been determined by the Tribunal in Borden v. Toronto Grace Health Centre, [2010 HRTO 1109](https://www.minicounsel.ca/hrto/2010/1109). In which it was held that section 34(11) applies to bar an Application where a civil suit has been commenced both before and after the Application.
> In my view, s. 34(11) applies to bar an application from proceeding where a civil action has been commenced both after and before the application. The word “make” is intended to refer to both the commencement and continuation of the application. There is no principled basis for the interpretation advanced by the applicant. The purpose of the provision is to avoid duplication of court and HRTO proceedings alleging particular breaches of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html), and there is no logical reason why the order in which the two proceedings were commenced should affect whether the Tribunal has jurisdiction. The applicant’s interpretation would make the provision easy to circumvent, and would defeat the clear policy intent of the Legislature.
[9] I agree with and adopt the reasoning in Borden above.
[10] The other argument advanced by the applicant does not assist him. Section 34(1) requires that the applicant make a choice of the forum in which they wish to pursue their claim. It is jurisdictional and not discretionary. If the circumstances fit within the four corners of the section, and this case does, it does not matter how or why the decision was made to commence the civil proceeding. I also agree that although there has been some delay in the scheduling of various stages of this case, the delay is not extraordinary or attributable to the respondent as asserted by the applicant.
[11] I find that the substance of this Application is indistinguishable from the substance of the Statement of Claim and that the applicant is seeking damages for alleged violations of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html). The matter has not been concluded or withdrawn but is ongoing. In these circumstances [section 34(11)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec34subsec11_smooth) of the Code applies and the Application must be dismissed.
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Dated at Toronto, this 16<sup>th</sup> day of August, 2017.
“Signed by”
__________________________________
David Muir
Vice-chair
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minicounsel