HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jennie Kinkley
Applicant
-and-
Home Depot of Canada Inc. and Sheila Fildes
Respondents
DECISION
Adjudicator: Alison Renton Date: September 28, 2009 Citation: 2009 HRTO 1551 Indexed as: Kinkley v. Home Depot of Canada
INTRODUCTION
1This Decision addresses whether the Tribunal has jurisdiction over this Application, as the applicant is a 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”).
BACKGROUND
2The Application, dated May 5, 2009, alleges that the respondents discriminated against the applicant on the basis of disability when her employment was terminated. The respondents have requested an early dismissal of the Application because the applicant filed a wrongful dismissal action based upon the same fact situation. The applicant has not filed a Reply and the time for so doing has now passed.
3Prior to filing the Application, the applicant commenced a wrongful dismissal action in the Superior Court of Justice on April 6, 2009 against the corporate respondent. In the action, she pleads that the termination of her employment was discriminatory on the basis of disability, contrary to the Code. She pleads that the breach of the Code entitles her to punitive and exemplary damages. Paragraph 31 of the Statement of Claim states that she “pleads and relies upon the provisions” of the Code. She specifically seeks “damages for discrimination contrary to section 5 of the [Code] in the sum of [$20,000.00] and reinstatement to her former position”.
STATUTORY PROVISIONS
4Section 34(11) of the Code provides:
A person who believes that one or his or her rights under Part I have 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 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
ANALYSIS
6Sections 46.1 and 34(11) are new provisions that took effect on June 30, 2008. Section 46.1 gives courts 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, section 34(11))(a) bars an application to the Tribunal.
7Although 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 section 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 section 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 section 45.1 and Rule 22.
8Section 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. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.
9Having decided to rely upon the Code in the ongoing action to seek damages, the applicant is precluded from bringing this Application by section 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
10The Application is dismissed.
Dated at Toronto, this 28th day of September, 2009.
”Signed By”
Alison Renton
Vice-chair