Harrop v. Blount Canada Ltd., 2009 HRTO 487

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roseanne Harrop

Applicant

-and-

Blount Canada Ltd.

Respondent

DECISION

Adjudicator: Judith Hinchman

Date: April 23, 2009

Citation: 2009 HRTO 487

Indexed as: Harrop v. Blount Canada

AppearanceS BY

Roseanne Harrop, Applicant ) Bram A. Lecker, ) Counsel

Blount Canada Ltd., Respondent ) Glenn P. Christie, ) Counsel

INTRODUCTION

1This is an Application filed July 25, 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 in April 2008 and abandoned upon filing this Application with the Tribunal.

2This Decision addresses respondent’s preliminary motion to dismiss the Application as barred because of an ongoing civil action. In the alternative, the respondent requests that the Application be deferred.

NATURE OF THE DISPUTE

3The respondent employed the applicant for approximately 15 years. In December 2006, the applicant suffered an illness which aggravated an old injury. The applicant went on short-term disability until July 3, 2007. The parties dispute whether the employer thereafter failed in its duty to accommodate the applicant’s disability. By letter dated November 16, 2007, the respondent terminated the applicant’s employment.

4In January 2008, the applicant commenced a civil action against the respondent for wrongful dismissal. In April 2008, the applicant filed a Human Rights Complaint alleging discrimination in employment on the ground of disability.

STATUTORY PROVISIONS

5Section 34(11) of the Code provides, in part:

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn.

6Section 45 of the Code permits the Tribunal to defer an application in accordance with the Tribunal’s Rules.

SUBMISSIONS OF THE PARTIES

Dismissal

7The respondent argues that the applicant commenced a wrongful dismissal action raising the same issues and based on the same facts on which her subsequent Application is based. Furthermore, it points out that in her Statement of Claim she claims damages for the respondent’s alleged failure to accommodate her disability as required under the Code. She pleads that this breach of the Code entitles her to bad faith, punitive and aggravated damages and she specifically pleads and relies on the Code in paragraph 36 of the Statement of Claim.

8The respondent argues that the factual and legal foundations for the Code-based allegations are the same in the civil action and Application. And that her claim for bad faith, punitive and aggravated damages is a request for monetary compensation as contemplated by s. 46.1 of the Code.

9The applicant argues first that the Application is not barred by s. 34(11) because the principal remedy sought in the Application is reinstatement with accommodations and that request is not included in her Statement of Claim. The applicant’s second argument is that in the civil action she did not seek damages for injury to her dignity, feelings and self-respect because the revised Code s. 46.1(1) remedies were not in force when the applicant commenced her civil action.

ANALYSIS

10The Tribunal stated in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, that s. 34(11) is triggered when an applicant raises the Code in a court action, the facts and issues are the same as those in the Application, and the court is asked to find an infringement of Code rights and award damages based on that alleged infringement.

11In addition to other statutes, the applicant pleads and relies on the Code in her Statement of Claim. The factual and legal foundation for the Code-based allegations are the same in the Application and the civil action. For example, in both she pleads facts relating to her disability and pleads that the employer failed to accommodate her condition. The civil action will require a court to make findings of fact, and consider awards of compensation for breaches of the Code.

12Clearly the applicant’s civil action and her Application to this Tribunal cover the same subject matter. The civil action has not been withdrawn, settled or determined. Although s. 46.1 was not in force at the time this action was filed, because the applicant relies on the Code to seek damages and has not amended her Statement of Claim to remove those claims, she has triggered s. 34(11). (See Beaver).

13The fact that the remedies available in the two forums may not be identical is not determinative of the issue. What is determinative is that the applicant has asked the court to make a finding of an infringement under the Code and seeks significant damages that would flow from such infringement. In enacting s. 34(11), the Legislature requires applicants to make a choice of forum when bringing complaints that their Code rights have been violated. Once a person claiming infringement has commenced a civil action claiming damages for the alleged human rights violation, s. 34(11) is clear in stating that the person cannot then proceed with a complaint to this Tribunal.

14The respondent’s request to dismiss the Application is granted. Having concluded that s. 34(11) applies, I do not need to consider the issue of deferral.

ORDER

15For all of these reasons, the Application is dismissed.