Yohann Johnson v. General Motors of Canada Limited and James Tucker, 2009 HRTO 2151

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yohann Johnson

Applicant

-and-

General Motors of Canada Limited and James Tucker

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: December 11, 2009

Citation: 2009 HRTO 2151

Indexed as: Johnson v. General Motors of Canada

WRITTEN SUBMISSIONS BY

Yohann Johnson, Applicant ) No submissions

General Motors of Canada Limited ) Neil Paris, Counsel

and James Tucker, Respondents )

1This Decision addresses whether the Tribunal has jurisdiction over this Application, as the applicant is plaintiff in an ongoing civil proceeding. The Tribunal sought submissions from the parties on this issue but the applicant did not respond.

2The complaint filed with the Ontario Human Rights Commission on September 8, 2005 and abandoned upon filing the present Application, alleges that the respondents discriminated against the applicant in employment on the basis of race and colour. The events arose out of a co-worker’s refusal to attend training with the applicant allegedly because of racism.

3On January 31, 2008, the applicant filed a Statement of Claim against the corporate respondent alleging breach of employment contract and seeking lost wages and benefits, punitive damages and “Wallace” damages. The basis for the Application stems from the same factual basis as set out in the complaint, although the Statement of Claim details events and effects which post date the complaint.

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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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 my view, the absence of an express pleading of section 46.1 is not determinative: Beaver, supra.

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