HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nancy Beaver
Applicant
-and-
Dr. Hans Epp Dentistry Professional Corporation and Dr. Hans Epp
Respondents
DECISION
Adjudicator: David A. Wright
Indexed as: Beaver v. Dr. Hans Epp Dentistry Professional Corporation
Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto ON M7A 2A3 Phone (416) 326-1312 / 1-866-598-0322 / Fax (416) 326-2199 / Toll Free 1-866-355-6099 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website http://www.hrto.ca
WRITTEN SUBMISSIONS BY
Nancy Beaver, Applicant ) Leanne E. Standryk, ) Counsel
Dr. Hans Epp Dentistry Professional Corporation ) Timothy R. Pedwell, and Dr. Hans Epp, Respondents ) Counsel
INTroduction
1This decision addresses whether the Tribunal has jurisdiction over this Application, as the applicant is plaintiff in an ongoing civil proceeding in which she seeks damages based upon the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 54, and Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 81, the Tribunal sought submissions from the parties on whether the Application was barred by virtue of s. 34(11) and/or s. 53(8) of the Code and a statement from the Ontario Human Rights Commission on the latter issue. In view of the conclusion I have reached, I need only address s. 34(11).
BACKGROUND
2The Application, dated August 6, 2008, alleges that the respondents discriminated against the applicant on the basis of age and disability by failing to accommodate her disability and dismissing her from employment. It also alleges that they violated her right to claim and enforce her rights without reprisal.
3Prior to filing the Application, the applicant commenced a wrongful dismissal action in the Superior Court of Justice on May 2, 2008 against the respondents. In the action, she pleads that the termination of her employment was discriminatory on the basis of age and disability, contrary to the Code, and that the defendants breached a statutory obligation under the Code to accommodate her disability to the point of undue hardship. She pleads that the breaches of the Code entitle her to bad faith, punitive and exemplary damages. Paragraph 23 of the Statement of Claim states that she “specifically pleads and relies upon the provisions of” the Code.
STATUTORY PROVISIONS
4Section 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.
5Section 46.1 reads as follows:
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.
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
SUBMISSIONS OF THE PARTIES
6The applicant argues that this Application is not barred by s. 34(11) because she has not claimed a declaration that her rights under the Code have been violated by the respondents nor specifically requested a remedy available to her under the Code. She states that the allegations in the civil action form only the basis of a claim for bad faith and punitive damages, and that at the time of filing the civil proceeding, before s. 46.1 came into effect on June 30, 2008, the civil courts had no jurisdiction to consider an action based directly on a violation of the Code.
7The respondents argue that that the claim for bad faith, punitive and exemplary damages is a request for monetary compensation as contemplated by s. 46.1 and is based upon the provisions of the Code. They state that s. 34(11) is intended to eliminate duplication of proceedings alleging Code violations.
ANALYSIS
8Sections 46.1 and 34(11) are new provisions that took effect on June 30, 2008. Section 46.1 gives courts new powers to provide remedies for violations of the Code. However, where a civil proceeding has been commenced seeking such remedies and the proceeding has not been finally determined or withdrawn, s. 34(11)(a) bars an application to the Tribunal.
9Although issues under the Code may arise in various other types of legal proceedings, it is only where the applicant has brought a civil proceeding as described in s. 34(11) that the legislation provides that the Tribunal has no jurisdiction over the application. In other circumstances, the application may be deferred pursuant to s. 45 and Rule 14 of the Tribunal’s Rules of Procedure where another proceeding is ongoing, or dismissed in whole or in part if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application under s. 45.1 and Rule 22.
10Section 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.
11To 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 is correct that s. 46.1 was not yet in force at the time the action was filed. The courts may have to determine in what circumstances it applies. However, it is not for the Tribunal to determine the strength of the applicant’s Code claims in the court action. Having decided to rely upon the Code in the ongoing action to seek damages (and not having amended the Statement of Claim to remove the claims based upon it), the applicant is precluded from bringing this Application by s. 34(11). There is no question that the factual and legal foundations for the Code-based allegations are the same in the Application and the civil action. The Tribunal therefore has no jurisdiction over the Application.
ORDER
13The Application is dismissed.
Dated at Toronto, this 19th day of November, 2008
“Signed by”
David A. Wright
Vice-Chair