David Ayres v. Cintas Canada Limited and Glen Kelemen, 2009 HRTO 1730

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Ayres

Applicant

-and-

Cintas Canada Limited and Glen Kelemen

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: October 21, 2009

Citation: 2009 HRTO 1730

Indexed as: Ayres v. Cintas Canada

WRITTEN SUBMISSIONS BY

David Ayres, Applicant ) Sharon Lax, Counsel

Cintas Canada Limited and )

Glen Kelemen, Respondents ) Kevin Coon, Counsel

1This decision addresses whether the Tribunal has jurisdiction over this Application, as the applicant is a plaintiff in an ongoing civil proceeding.

2The complaint, filed with the Ontario Human Rights Commission on March 23, 2006, and abandoned upon filing the present Application under s. 53 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the respondents discriminated against the applicant in employment on the basis of age and disability, ultimately terminating his employment.

3On May 11, 2007, the applicant filed an amended Statement of Claim against the respondents alleging wrongful dismissal, intentional infliction of nervous shock, humiliating and demeaning treatment, and inducing breach of contract. The applicant sought in the civil action, among other things, damages for breach of the applicant’s right to a workplace free of discrimination and harassment on the basis of age and disability.

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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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:

1. 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.

2. 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

6In my view, if a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

7This interpretation of s. 34(11), in my view, also corresponds to the underlying purpose and rationale for this provision. As stated in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10:

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.

8I find that the factual situation set out in the Application is the same as the factual situation set out in the civil action and that the applicant is effectively seeking damages for a breach of the Code. In my view, the absence of an express pleading of section 46.1 is not determinative: Beaver v. Hans Epp Dentistry Professional Corporation, supra. .

9In the result, I find that the Application is barred by s. 34(11) of the Code. The Application is therefore dismissed.