Sarah Baker v. Sears Canada Inc. and Monique Binder, 2009 HRTO 1014

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sarah Baker

Applicant

-and-

Sears Canada Inc. and Monique Binder

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: July 9, 2009

Citation: 2009 HRTO 1014

Indexed as: Baker v. Sears Canada

WRITTEN SUBMISSIONS BY

Sarah Baker, Applicant ) On her own behalf

Sears Canada Inc. and ) Mathias Link, Counsel Monique Binder, Respondents )

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request that the Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on February 14, 2009, be dismissed for lack of jurisdiction. The respondents request a dismissal without filing a full response, pursuant to section 34(11) of the Code, which bars a person from making an application to the Tribunal where there is an ongoing civil claim in the courts which seeks remedies for discrimination arising from the same events.

2For the reasons set out below, the respondents’ request for early dismissal is denied and the respondents are required to file a full Response.

BACKGROUND TO THE APPLICATION

3The Application alleges discrimination on the basis of disability in employment. In particular, the applicant alleges that the respondents—her former employer and supervisor—harassed and discriminated against her and subjected her to reprisals leading to her termination after she complained of the alleged harassment.

4The respondents have not filed a complete Response responding to the allegations of harassment, discrimination and reprisal. Their Response, filed on April 15, 2009, asks for early dismissal pursuant to section 34(11) on the basis that the applicant filed a Statement of Claim (the “Claim”) in Belleville Small Claims Court alleging that she had been wrongfully dismissed. The Claim was issued by the Court on March 16, 2009. The Respondents submit that the Claim relies on the same facts and seeks identical relief as the Application before the Tribunal. In the alternative, the respondents request if the Application is not dismissed, that it be deferred pending the conclusion of the civil trial.

5The applicant argues that the two cases address completely different issues, admittedly both related to her employment with the corporate respondent, but referring to discrete legal rights and obligations. She states that she has tailored her pleadings to the distinct allegations made and to the remedies sought in each matter, and requests that the Application be permitted to continue.

ANALYSIS AND DECISION

6The respondents submit that the purpose of section 34(11) is to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In support of this correct proposition, they rely on the Tribunal’s decision in Beaver v. Dr. Hans Epp Dentistry Professional Corp., 2008 HRTO 282 at para. 10. It is worth reproducing the entire paragraph referred to by the respondents:

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 [emphasis added].

7The final sentence of this passage provides especially useful instruction in the present case. The threshold question is whether the applicant did in fact decide to raise the Code and seek remedies for alleged breaches by way of a court action. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section 34(11). If not, however, then the factual similarity between the two pieces of litigation is irrelevant to the question of the Tribunal’s jurisdiction to consider the matter. Similarly, any prejudice alleged by the respondents is immaterial to the jurisdictional question. The Tribunal either has jurisdiction to consider a matter or it does not.

8The Tribunal is not charged with a broad mandate to manage scarce judicial resources across adjudicative agencies, nor is it empowered to do so. Any person is entitled to file an Application, subject to clearly-defined jurisdictional limits. On a request for early dismissal without a hearing, the Tribunal must determine whether a jurisdictional bar prescribed in the Tribunal’s enabling legislation, in this case section 34(11), applies. The question of whether the Tribunal has the jurisdiction to deal with an application is distinct from the issue of whether it should defer dealing with an application in its jurisdiction, in the face of concurrent legal proceedings.

9Having reviewed the Application and the Statement of Claim, I find that the applicant has not triggered section 34(11) because she has not raised the Code in her civil action. While it is true that both the Claim and the Application rest on a similar factual bedrock, arise from the same sequence of events and present related issues, similarity or overlap in the facts does not amount to duplication of legal issues. In the Claim, the applicant does not cite or mention the Code, she refrains from alleging discrimination and, indeed, does not even plead the fact of her disability, which would be fatal to any putative claim for discrimination damages in any event.

10In her submissions, the applicant further explains that the purpose of the civil suit is to seek damages for the termination, which she alleges was without just cause and without reasonable notice or pay in lieu thereof, while the human rights case seeks remedies related to the pattern of alleged harassment and discrimination during her employment with the company and by the personal respondent, who is not named in the Claim. The respondents note that the distinction between alleged treatment leading up to termination and the termination itself is tenuous. While I agree that there is significant factual overlap, I do not find that it makes any difference as to whether she can continue with both cases. While the similarity of the underlying facts may be relevant to the Tribunal’s decision on deferral of the Application, it does not determine the question about whether section 34(11) bars the Application entirely.

11The applicant has adequately pleaded two distinct cases: one for wrongful dismissal in the courts, and another for discrimination at the Tribunal. The fact that these two distinct causes of action arise from similar facts is not determinative of the Tribunal’s jurisdiction over the discrimination claim. I am not aware of any case law that bars an application from proceeding before the Tribunal where the individual has failed even to mention discrimination in their civil action. While the Tribunal found in Beaver that section 46.1 need not be expressly pleaded, it did note that the applicant in that case had specifically pleaded and relied upon the provisions of the Code in her Claim, which was filed three months prior to her Application. There is no parallel in the case at hand.

12Moreover, the fact that the case could potentially have been commenced as a single court action alleging both wrongful dismissal and discrimination is a matter of personal choice the legislature has left up to individuals bringing such cases. It is not within the Tribunal’s jurisdiction or mandate to instruct parties where to bring their cases. The Tribunal’s function is to determine whether it has the jurisdiction to accept the Application as filed. In this case, I find the Tribunal does have jurisdiction over the matter.

DEFERRAL

13In its additional submissions on Dismissal, the respondents argue alternatively that, in the event the Application is not dismissed, it should be deferred pending the completion of the small claims court trial, which the Respondents anticipate will occur some time in September or October, 2009. The applicant has not made submissions on the question of deferral. She shall be given an opportunity to make such submissions following filing of the respondents’ Response.

ORDER

14The request for early dismissal pursuant to section 34(11) is refused. The respondents are ordered to file a full response within 30 days of this Decision. The applicant may file a Reply not later than 14 days after the Tribunal sends her the Response. Even if she does not file a Reply, she must make submissions on the respondents’ request to defer the Application by the date set for filing a Reply.