HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dean McMuldroch

Applicant

-and-

Honda of Canada Manufacturing

Respondent

DECISION

Adjudicator: David Muir

Date: November 24, 2009

Citation: 2009 HRTO 2007

Indexed as: McMuldroch v. Honda of Canada Manufacturing

Written Submissions by

Dean McMuldroch, Applicant ) No submissions

Honda of Canada Manufacturing, Respondent ) Jayson Rider, Counsel

[1] This is an Application received on June 25, 2009 and perfected on September 16, 2009 under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). This Interim Decision deals with a Request for Order during Proceeding seeking a dismissal pursuant to s. 34(11) of the Code or, alternatively, a deferral of the Application pending the conclusion of a wrongful dismissal suit commenced by the Applicant.

[2] The human rights complaint underlying this Application (the “complaint”) was filed with the Ontario Human Rights Commission on April 26, 2004. The applicant was an employee of the respondent and suffered injuries in car accident in 1999 and 2003. The applicant alleges in the complaint that he is a person who has depression and injuries to his neck, back, wrist and right knee. The applicant makes a number of allegations that the employer failed in its duty to accommodate him and further alleges that he was harassed by management staff as a consequence of his disabilities culminating in his dismissal in September 2004. For example, the applicant alleges that he was threatened with disciplinary action for being off work for four days after the first accident.

[3] The applicant also alleges that on various occasions between October 1999 and April 2004, he was subject to varying degrees of pressure to work beyond the restrictions provided by his treating physician. He alleges that his work ethic was questioned. The applicant also alleges that his disabilities were the subject of comment by his supervisors in the workplace in front of co-workers. In September 2003, the applicant states that he received a letter of termination (effective March 31, 2004 from the respondent employer).

[4] A Statement of Claim was issued on March 29, 2006. In the action the applicant claims damages for wrongful dismissal, damages for mental distress and punitive damages. Amongst the allegations made in the Statement of Claim are the following:

a. The employer consistently required the applicant to carry out on line processes that were beyond his capabilities and work restrictions.

b. The plaintiff’s work ethic was questioned.

c. The employer requested medical updates on unreasonable time frames and when they were not provided would remove his restrictions.

d. He was accused of hi-jacking his employer because of the accommodations he required.

e. Without any basis the employer would reject the applicant’s doctor’s work restrictions.

f. Managers and supervisors would comment on the applicant’s disabilities and accommodations in front of other workers in an attempt to embarrass and intimidate the applicant.

g. As a result of this harassment, the applicant pleads, he was fearful that he would be embarrassed, degraded and his employment would be terminated. This caused the applicant stress and anxiety and caused his medical condition to worsen. Accordingly the applicant claims entitlement to damages for mental distress.

[5] There is no request for an Order pursuant to s. 46.1 in the Statement of Claim, nor are there any explicit references to the Code.

[6] Section 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.

[7] Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code, see [Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282](https://www.minicounsel.ca/hrto/2008/282) at para. [10](https://www.minicounsel.ca/hrto/2008/282).

[8] I agree with those decisions where the Tribunal has concluded that where 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. I also find that it is not necessary for there to be specific reference to the Code in the pleadings for the s. 34(11) bar to apply. See [Hallett v. Grey Bruce Health Services, 2009 HRTO 403](https://www.minicounsel.ca/hrto/2009/403); [Farlow v. Hospital for Sick Children, 2009 HRTO 739](https://www.minicounsel.ca/hrto/2009/739).

[9] The factual claims made in the wrongful dismissal action are indistinguishable from the allegations contained in this Application. The Statement of Claim relies upon the same allegations of harassment and discrimination stemming from the same claim of disability that are raised in the Application. That is sufficient to engage the s. 34(11) bar in my view.

[10] The remedies sought in the two proceedings, although not identical, are clearly overlapping. However the fact that the remedies claimed are not identical is not determinative of the issue. See Hallett v. Grey Bruce Health Services, supra. Moreover the allegations of harassment and an alleged ongoing failure to accommodate the applicant/plaintiff form the basis for the applicant’s claim to damages for mental distress and punitive damages.

[11] The Legislature by the enactment of section 34(11) requires that applicants make a choice of forum when bringing complaints that their rights under the Code have been violated. The continued processing of this Application directly engages the policy concerns underlying the section – the dangers of inconsistent findings of fact and the waste of public as well as private resources consequent to duplicative litigation.

[12] For these reasons the Application is dismissed.

Dated at Toronto, this 24th day of November, 2009,

“Signed by”

David Muir

Vice-chair