Catherine Harvey v. Ellesmere X-Ray Associates and Samuel Rabinovitch, 2009 HRTO 35

Human Rights Tribunal of Ontario

B E T W E E N:

Catherine Harvey

Applicant

-and-

Ellesmere X-Ray Associates and Samuel Rabinovitch

Respondents

INTERIM decision

Adjudicator: Brian Eyolfson

Date: January 9, 2009

Citation: 2009 HRTO 35

Indexed as: Harvey v. Ellesmere X-Ray Associates

1This is an Application filed November 31, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability and reprisal.

2The Application has not yet been sent to the respondents as it appears that there may be an issue affecting the Tribunal’s jurisdiction to proceed with the Application.

3The Application indicates that a court action has been commenced based on the same facts as the Application and a copy of the statement of claim was filed with the Application. In the civil action, the applicant pleads that the termination of her employment was a reprisal in contravention of the Code and “bad faith damages” are claimed for the alleged violation.

4Section 34(11) of the Code provides, in part:

(11) 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn…

5As a result, the Tribunal determines that it is appropriate to receive submissions with respect to whether, in the circumstances, this Application is barred by virtue of section 34(11) of the Code. The Tribunal makes the following Order:

a. By January 20, 2009, the applicant shall deliver to the respondents and file with the Tribunal submissions on whether this Application is barred by virtue of section 34(11) of the Code, and whether the Tribunal has jurisdiction to deal with the merits of this Application;

b. By February 3, 2009, the respondents shall deliver to the applicant and file with the Tribunal a response to the submissions of the applicant on whether this Application is barred by virtue of section 34(11) of the Code, and whether the Tribunal has jurisdiction to deal with the merits of this Application;

c. By February 10, 2009, the applicant shall deliver and file a Reply, if any;

d. The Registrar will send the respondents a copy of the Application along with this decision;

e. The respondents are not required to file a Response to the Application until so directed by the Tribunal.

6I am not seized of this matter.