HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ann Vickery
Applicant
-and-
Invista Canada Corp.
Respondent
case Resolution Conference DECISION
Adjudicator: Dale Hewat
Indexed as: Vickery v. Invista
AppearanceS BY
Ann Vickery, Applicant ) Bram Lecker, ) Counsel
Invista Canada Corp., Respondent ) Robert W. Little, ) Counsel
Background and Procedure
1This is an Application filed August 8, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on January 18, 2008 and abandoned upon filing this Application with the Tribunal.
2The Case Resolution Conference was conducted on February 24, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner.
3This decision addresses whether the Tribunal has jurisdiction over this Application because the applicant is plaintiff in an ongoing civil proceeding in which she pleads and relies upon the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
4The respondent asserts that the Application is barred pursuant to s. 34(11) of the Code and that remedial relief under s. 46.1 Code provisions are available in the civil proceedings because the applicant is asking the court to find various infringements of the Code and to award damages with respect to the same issues that are the subject matter of this Application.
5The applicant submits that the remedies that are being sought under the Code should be more appropriately dealt with by the Tribunal. Specifically, the applicant seeks reinstatement with accommodation, damages for loss of dignity, feelings and self-respect, and an order that the respondent’s eligibility requirement for long term disability violates the Code.
Decision
6The respondent’s request to bar the Application based on s. 34(11) is granted. Having concluded that s. 34(11) applies, I do not need to consider submissions regarding deferral. The following are my reasons for the Decision.
BACKGROUND
7The Application alleges that the respondent discriminated against the applicant on the basis of disability in employment when she was required to voluntarily terminate her employment by letter dated June 13, 2007 in order to receive Long Term Disability (“LTD”) benefits. The applicant claims that the respondent has breached sections 5(1), 10(1) and 17(2) of the Code. The applicant is seeking compensation for the loss of employment and damages. She is also asks the Tribunal to find that the respondent’s policy requiring termination of employment in exchange for LTD is unlawful.
8The applicant was employed by the respondent, Invista, beginning in February 1997 and held a variety of managerial positions until the termination of her employment on June 13, 2007. In August 2005, the applicant was diagnosed with lung cancer and continued in her employment while seeking medical treatment. In November 2006, the applicant went on short-term disability for medical reasons. When the short-term disability benefits were exhausted in June 2007, the applicant applied for LTD. However in order to qualify for LTD, the applicant was required to voluntarily terminate her employment, which she did.
9The applicant claims that when she contacted the respondent at a later date asking that she return to work with accommodation, she was told that there was no position because she had terminated her employment to qualify for LTD. The applicant further states that when she signed the letter on June 29, 2007, terminating her employment, she was under duress and mental distress and did not understand the legal implications of her decision to terminate.
10Prior to the filing of her Application, the applicant commenced a wrongful dismissal action in the Superior Court of Justice on January 7, 2008 against the respondent. Paragraph 37 of the Statement of Claim (the “Claim”) states that the
Plaintiff pleads and relies on the Employment Standards Act, 2000, the Ontario Human Rights Code, and in addition states that as of July 3, 2007, her employment has been terminated without reasonable notice and payment in lieu of such notice.
11Throughout the Claim, numerous references are made citing breaches of the Code. For example, in paragraph 16, with reference to the requirement to terminate employment in order to qualify for LTD it is stated
It is the Plaintiff’s position that such a declaration deprives the Plaintiff her statutory entitlements to accommodation, as specified in ss. 5(1), 10(1) and 17(2) of the Ontario Human Rights Code.
Paragraph 20 also makes reference to the Plaintiff’s employment being
terminated as a direct result of her illness/disability, notwithstanding the Plaintiff’s entitlements under ss.5(1), 10(1) and 17(2) of the Code.
Paragraph 24 states that
the Defendant has neglected and/refused to return the Plaintiff to her original duties in a secure, non-discriminatory environment.
A number of other references are made about the Defendant’s failure to accommodate the Plaintiff’s return to work and that the breach of this statutory duty, among others, has caused substantial damages including damages for mental distress. Paragraph 35 states that
the Defendant’s subsequent treatment of her in addition to being in breach of her employment, was also callous, harsh, wanton, reckless and unwarranted and has resulted and will continue to result in emotional upset, stress, frustration, humiliation, depression and illness for which the Plaintiff seeks punitive and aggravated damages.
STATUTORY PROVISIONS
12Section 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.
Section 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:
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.
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.
Submission of the Parties
13The respondent argues that the Application is barred by s. 34(11) because the Application and the Claim completely overlap in both subject-matter and remedies sought. Duplication of proceedings, the respondent argues, is exactly what s. 34(11) is intended to prevent. In addition, the respondent asserts that the Claim specifically pleads and relies upon the Code, and therefore, there is no unfairness to the applicant based on the powers given to the courts to award a wide range of Code remedies pursuant to s. 46.1. Although s. 46.1 was not in force at the time the civil action was filed, the respondent submits that the courts now have the jurisdiction to apply s. 46.1 where a plaintiff has sought to rely upon the Code in a statement of claim.
14The applicant agrees that the subject matter of the Application and the Claim overlap. However, the applicant argues that the two proceedings deal with different legal theories; the Claim arises out of the workplace context seeking monetary damages for loss of income whereas the Application deals with allegations of the respondent’s discriminatory treatment of the applicant and its breach of the Code. The applicant also argues that the Application seeks reinstatement with accommodation which is not directly sought in the Claim and notes that a court would be reluctant to issue an order of reinstatement in a wrongful dismissal action. The applicant also argues that damages for injury to dignity, feelings and self-respect are available exclusively under s. 46.1(1) of the Code and were not contemplated at the time when the Claim was filed. In order to obtain this type of remedy, the applicant states that the Claim would have to be amended which is unnecessary when a less expensive and more expeditious avenue is available under the Code. Finally, the applicant relies on the fact that one of the remedies being sought in the Application is a declaration that the respondent’s LTD eligibility requirement violates the Code. The applicant argues that the request for such declaration is a systemic remedy that is clearly within the Tribunal’s jurisdiction.
Analysis
15The language in s. 34(11)(a) is not discretionary. An application claiming an infringement of the Code is barred if the applicant is involved in an on-going civil proceeding seeking an order under s. 46.1 with respect to the alleged infringement so long as the civil proceeding has not been withdrawn or finally determined. The language in s. 46.1 gives the courts the choice, in a civil proceeding, to make orders either under s. 46.1(1) or 46.1(2) or both for monetary compensation and/or restitution other than through monetary compensation for a Code infringement. Therefore, s. 34(11) is not only designed to prevent duplicity in proceedings but also to provide a mechanism for the courts to grant appropriate human rights remedial relief to address an infringement of the Code within the parameters of s. 46.1.
16In this case, there is an on-going civil proceeding that clearly deals with the same allegations and subject matter as the Application. The Claim pleads reliance on the Code and alleges the same Code violations as the Application. What’s missing from the Claim is a request for reinstatement with accommodation, a request for a systemic remedy and a specific request for an order under s. 46.1.
17In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, an application was barred pursuant to s. 34(11) where an applicant had filed a wrongful dismissal action which plead that her termination of employment was discriminatory on the basis of age and disability, contrary to the Code, as well as allegations that the defendants breached their statutory obligation under the Code to accommodate her disability to the point of undue hardship. Like Beaver, this applicant’s Claim specifically pleads and relies on the Code. It also makes multiple references to breaches of the Code and the denial of the applicant’s rights to accommodation under the Code resulting from the employment termination requirement in the respondent’s LTD policy.
18The Tribunal’s analysis in the Beaver decision is applicable in this case, particularly with reference to its finding that s. 46.1 need not be pleaded in a civil action in order to trigger the s. 34(11) bar. In that regard, the Tribunal remarked at paragraphs 11 and 12 in Beaver :
To find that s. 34(11) only applies if s.46.1 is pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s.34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application , and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.
The applicant is correct that s.46.1 was not yet in force at the time the action was filed. The courts may have to determine in what circumstances it applies. However, it is not for the Tribunal to determine the strength of the applicant’s Code claims in the court action. Having decided to rely upon the Code in the ongoing action to seek damages (and not having amended the Statement of claim to remove the claims based upon it), the applicant is precluded form bringing this Application by s.34(11). There is no question that the factual and legal foundations fro the Code-based allegations are the same in the Application and the civil action. The Tribunal therefore has no jurisdiction over the Application.
19The case before me differs from the cases cited by the applicant. In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, an application was not barred under s. 34(11) because the Tribunal found that the civil action was a distinct claim for wrongful dismissal on the basis of just cause that did not claim either an infringement of the applicant’s rights or any remedial relief under the Code. Similarly, in Smith v. Menzies Chrysler, 2008 HRTO 37, the Tribunal found, at paragraph 29, that the two proceedings were not duplicative because the case involved different parties with their respective interests as well as distinct legal issues and remedies. In addition, the Tribunal examined the issue of double recovery concluding that parties can prevent re-litigation and double recovery by ensuring that the first judicial body’s findings and awards are disclosed to the second judicial body.
20I agree with the Tribunal’s reasoning in Beaver that the omission of s. 46.1 from a Claim would be an overly technical interpretation that would defeat the purpose of s. 34(11). The applicant has asked the court to make a finding of an infringement under the Code and has sought significant damages that would flow from such infringement. In terms of any systemic ruling and relief, should the court conclude that the LTD qualification policy denied the applicant her rights under the Code, the validity of the LTD qualification would also be in question, which could then trigger the application of s. 46.1 to determine the appropriate remedy. In essence, the applicant’s Claim does not preclude her from proving Code violations nor from seeking relief that would be available to her pursuant to the Code within the scope of the civil proceeding.
ORDER
21The respondent’s request is granted. Accordingly, the Application is dismissed.
Dated at Toronto, this 17th day of March, 2009.
“Signed by”
Dale Hewat
Member