Clark v. Upper Canada Skating Club, 2009 HRTO 2217

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Clark

Applicant

-and-

Upper Canada Skating Club

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 18, 2009

Citation: 2009 HRTO 2217

Indexed as: Clark v. Upper Canada Skating Club

WRITTEN SUBMISSIONS BY

Sharon Clark, Applicant ) Michael Alexander, ) Counsel

Upper Canada Skating Club, ) Scott Rosen, Counsel Respondent )

1This Interim Decision addresses whether the Application is barred or should be deferred as the applicant is plaintiff in an ongoing civil proceeding. It also addresses the applicant’s Request for Order during Proceedings to amend the Application. The parties provided submission on all three issues.

2The complaint filed with the Ontario Human Rights Commission on November 13, 2007 and abandoned upon filing the present Application, alleges that the respondent discriminated against her with respect to employment on the basis of marital status. In particular she alleges that her contract was terminated because of a dispute between the respondent and her husband.

3On June 1, 2009, the applicant and her husband jointly commenced a civil action against the respondent alleging improper termination of their contracts and seeking damages. There is no allegation in that action that could found a claim for damages under the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the Code).

Request to Amend the Application

4On June 25, 2009, the applicant filed the present Application along with a Request for Order seeking to amend the application in accordance with the details set out in an attached Form 1 (an application under section 34).

5The request to amend is unnecessary, as the facts set out in the Form 1 merely particularize the substance of the complaint already filed. The Form 1 will not be treated as a new Application, but merely as a document providing further details of the Application.

Request to Dismiss

6Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

7Section 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

8In 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.

9This 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.

10However, in this case, while there is some factual similarity between the civil action and the human rights Application, the civil action makes no reference to any facts which could give rise to claim for a remedy under the Code. In these circumstances, I find that the Application is not barred by s. 34(11) of the Code.

REQUEST TO DEFER

11I will now consider whether the Application should be deferred pending the outcome of the civil action.

12Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

13Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

14In the circumstances of this case, I find that deferral is appropriate. The civil action and the human rights Application will address similar facts and issues. While the civil action appears to be at an early stage, so is this Application. Accordingly, the Application will be deferred pending the outcome of the applicant’s civil action.

15At the conclusion of the civil action, either party may contact the Tribunal to continue processing the Application. The applicant has indicated that she may remove herself from the civil action. If so, she may seek to have this Application proceed.