John Cornell v. Simcoe Parts Services Inc., 2009 HRTO 1932

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Cornell

Applicant

-and-

Simcoe Parts Services Inc.

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: November 12, 2009

Citation: 2009 HRTO 1932

Indexed as: Cornell v. Simcoe Parts Services

WRITTEN SUBMISSIONS BY

John Cornell, Applicant ) Andrew Kerr, Counsel

Simcoe Parts Service Inc., Respondent ) Kevin MacNeill and Kevin Inwood, ) Counsel

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

2The complaint filed with the Ontario Human Rights Commission on August 2, 2006 and abandoned upon filing the present Application, alleges that the respondents discriminated against him in employment on the basis of disability when they terminated his employment.

3On March 6, 2008 the applicant filed a Statement of Claim against the respondent alleging wrongful dismissal in that the respondent failed to accommodate his disability. The civil action also alleges negligence and breach of the duty of good faith. The applicant sought, among other things, damages for wrongful dismissal, punitive damages, and damages for breach of good faith. In assessing the damages for wrongful dismissal, the claim asserts that the defendant failed to consider the effect of the applicant’s disability.

STATUTORY PROVISIONS

4Section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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 particular, the request to extend the period of reasonable notice in part because of the respondent’s failure to consider the applicant’s disability, bring this action within the context of section 34(11). In my view, the absence of an express pleading of section 46.1 is not determinative: Beaver, supra. In the result, I find that the Application is barred by s. 34(11) of the Code. The Application is therefore dismissed.