Bellehumeur v. Windsor Factory Supply, 2009 HRTO 2121

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alfred Bellehumeur

Applicant

-and-

Windsor Factory Supply Ltd., Duncan Brown, Connie Palmer,

David Marcon and Brian Dupuis

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: December 8, 2009

Citation: 2009 HRTO 2121

Indexed as: Bellehumeur v. Windsor Factory Supply

WRITTEN SUBMISSIONS BY

Alfred Bellehumeur, Applicant ) James Renaud,

) Counsel

Windsor Factory Supply Ltd., Duncan Brown, )

Connie Palmer, David Marcon and Brian Dupuis, ) Daniel K. Moorhouse,

Respondents ) 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 April 28, 2006 and abandoned upon filing the present Application pursuant to s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the respondents discriminated against him in employment on the basis of disability, ultimately terminating his employment and depriving him of his ability to claim disability benefits. In his complaint, he sought reinstatement and financial compensation.

3On November 20, 2007, the applicant filed a Statement of Claim against the corporate respondent alleging wrongful dismissal, breach of contract, intentional infliction of nervous shock, bad faith and seeking damages. He specifically claimed damages for the discriminatory treatment due to his disability in violation of the Code.

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

9The applicant argues s. 34(11) did not apply on the basis that the civil action cannot result in the remedy of reinstatement. It is not clear whether the Court will interpret section 46.1 to permit reinstatement. Section 46.1(1)2 does provide the court with the authority to order restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement.

10In any event, s. 34(11) does not contain any exception for circumstances where the applicant may be seeking remedies that a Court is unable to order.

11The Application is barred by s. 34(11) of the Code.

ORDER

12The Application is dismissed.