Madalinski v. Domtar, 2009 HRTO 1928

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Madalinski Applicant

-and-

Domtar Inc., Diane Yuhasz, Steve Heritage and Daniel Carlascio Respondents

DECISION

Adjudicator: Judith Hinchman Date: November 12, 2009 Citation: 2009 HRTO 1928 Indexed as: Madalinski v. Domtar

WRITTEN SUBMISSIONS BY

Peter Madalinski, Applicant ) Paulette Haynes, Counsel

Domtar Inc., Diane Yuhasz, Steve Heritage and Daniel Carlascio, Respondents ) Lia Chiarotto, Counsel

INTRODUCTION

1This is an Application filed February 9, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying human rights complaint (the "Complaint") was filed with the Ontario Human Rights Commission on February 23, 2008 and abandoned upon filing this Application with the Tribunal.

2This Decision addresses respondents' Request to dismiss the Application as barred by s. 34(11) of the Code because of an ongoing civil action that was commenced by Statement of Claim issued September 25, 2009 (the "Civil Action"). In the alternative, the respondents request that the Application be deferred.

NATURE OF THE DISPUTE

3The applicant filed his Complaint on February 23, 2008 and subsequently abandoned that Complaint to file the present Application. The Application alleges discrimination in employment on the basis of age, disability, and place of origin. In particular, the applicant alleges several incidents in the workplace that represent harassment and discrimination based on those grounds. He also alleges that he complained to the corporate respondent who failed to take his complaints seriously or to investigate and therefore permitted a poisoned work environment. Finally, the applicant alleges he was ultimately fired based on his age and disability.

4On September 25, 2009, the applicant commenced the Civil Action against the corporate respondent seeking general damages for both wrongful dismissal and intentional infliction of mental distress and aggravated or punitive damages. In his Civil Action, the applicant pleads similar facts as those alleged in his Application. For example he pleads:

1. Various employees embarked on a campaign to harass him at the workplace, concerning his ethnicity and age.
2. His complaints to management were marginalized or ignored and management made no effort to investigate contrary to its Code of Ethics or Human Rights Policy.
3. The corporate respondent fostered a toxic work environment.

5Section 34(11) of the Code provides, in part:

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.

6The applicant takes the position that "while it appears that both the Application and the Civil Action are based on the same series of events, he is not seeking an Order under Section 46.1 of the Code in the Civil Action as a result of the alleged Code infringement."

7He argues that the Civil Action and the Application are distinct in that the Civil Action is founded on wrongful dismissal and intentional infliction of mental distress based on, but not limited to, harassing and discriminating behavior. In contrast, he argues the Application alleges discrimination on age, ethnic origin, and disability. Finally, he argues that he seeks different remedies in each venue, some of which cannot be obtained in the Civil Action.

8The respondents argue that the applicant seeks remedies in his Civil Action for the same alleged acts of harassment and discrimination that form the basis of his Application.

ANALYSIS

9The Tribunal stated in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, that s. 34(11) is triggered when an applicant raises the Code in a court action, the facts and issues are the same as those in the Application, and the court is asked to find an infringement of Code rights and award damages based on that alleged infringement. The underlying purpose and rationale for this provision was stated in Beaver, supra as follows:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code.

10This Tribunal has found that s. 34(11) bars an application to the Tribunal, as a matter of jurisdiction, where there is an ongoing civil claim in the courts which seeks remedies for discrimination arising from the same events. See for example Reis v. CIBC Mortgages, 2009 HRTO 1350, Nogueira v. Catholic Children's Aid Society of Toronto, 2009 HRTO 802, and Free v. Magnetawen (Municipality), 2009 HRTO 1621.

11As in Free, supra, it is apparent that the Application and the Statement of Claim are based on the same chain of events. While the Statement of Claim does not specifically refer to the Code, the applicant pleads that he faced harassment due to ethnicity and age, as he does in his Application. Furthermore, both the Application and Statement of Claim allege that the corporate respondent failed to investigate his complaints of harassment contrary to their own Human Rights Policy or otherwise respond appropriately. Finally, the damages sought in each forum, although not identical, are based on the same alleged human rights infringements.

12The fact that the remedies available in the two forums may not be identical is not determinative of the issue. Clearly the applicant's Statement of Claim and his Application to this Tribunal cover the same subject matter. The Civil Action has not been withdrawn, settled or determined. If the applicant is permitted to proceed in both forums, he would be entitled to proceed with his Application before the Tribunal and present all of his evidence relating to the factual circumstances alleged to have given rise to harassment and discrimination in the workplace that would be a duplication of that evidence in the Civil Action to support his allegations in his Statement of Claim arising out of precisely the same factual circumstances. In such circumstances, the Tribunal has found that the absence of an express pleading of s. 46.1 is not determinative. See Beaver, supra, Reis, supra.

13In enacting s. 34(11), the Legislature requires applicants to make a choice of forum when bringing complaints that their Code rights have been violated. Once a person claiming infringement has commenced a civil action claiming damages for the alleged human rights violation, s. 34(11) is clear in stating that the person cannot then proceed with a complaint to this Tribunal.

14The respondents' request to dismiss the Application is granted. Having concluded that s. 34(11) applies, I do not need to consider the issue of deferral.

ORDER

15For all of these reasons, the Application is dismissed.