Adele Thompson v. Goldcorp Canada Ltd. o/a Musselwhite Mine, 2009 HRTO 637

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adele Thompson

Applicant

-and-

Goldcorp Canada Ltd. o/a Musselwhite Mine

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: May 14, 2009

Citation: 2009 HRTO 637

Indexed as: Thompson v. Goldcorp Canada

WRITTEN SUBMISSIONS BY

Adele Thompson, Applicant ) G. Lorne Firman, ) Counsel

Goldcorp Canada Ltd. ) Mark D. Contini, o/a Musselwhite Mine, Respondent ) Counsel

INTroduction

1This is an Application filed December 18, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This decision addresses whether this Application should be dismissed, as the applicant is a plaintiff in an ongoing civil proceeding in which she seeks damages based upon the Code.

3The complaint which underlies the present Application was filed with the Ontario Human Rights Commission on March 20, 2007 and alleges discrimination on the basis of sex, race and family status with respect to the termination of the applicant’s employment on October 6, 2006. On June 30, 2008, the applicant filed a civil action with respect to her dismissal. In that action, she alleged that respondent’s decision to terminate her employment was for a reason prohibited by the Code, in particular, her family status. The applicant also sought damages for the breach of the Code.

4Paragraph 47 of the Statement of Claim states that she “specifically pleads and relies upon the provisions of” the Code.

STATUTORY PROVISIONS

5Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

6Section 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.

SUBMISSIONS OF THE PARTIES

7The applicant was given an opportunity to file written submissions on the respondent’s request for dismissal of the Application but did not do so, because, in the words of the applicant’s counsel, he is unable to locate his client. This decision is based on the written submissions of the respondent.

ANALYSIS

8Sections 46.1 and 34(11) are new provisions that took effect on June 30, 2008. Section 46.1 gives courts new powers to provide remedies for violations of the Code. However, where a civil proceeding has been commenced seeking such remedies and the proceeding has not been finally determined or withdrawn, s. 34(11)(a) bars an application to the Tribunal.

9Section 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 civil action.

10I am satisfied that section 34(11) applies in the present circumstances, where the facts and issues in the 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.

ORDER

11The Application is dismissed.