Nogueira v. Catholic Children’s Aid Society of Toronto, 2009 HRTO 802

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ermelinda Nogueira

Applicant

-and-

Catholic Children’s Aid Society of Toronto

Respondent

case Resolution Conference DECISION

Adjudicator: Mark Hart

Date: June 10, 2009

Citation: 2009 HRTO 802

Indexed as: Nogueira v. Catholic Children’s Aid Society of Toronto

APPEARANCES AND wRITTEN SUBMISSIONS BY

Ermelinda Nogueira, Applicant ) Craig Colraine and ) Debbie Jorgensen, Counsel

Catholic Children’s Aid Society of Toronto, ) Mark V. Ellis, Counsel Respondent )

1This is an Application dated August 26, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging reprisal in employment. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 22, 2007.

2The purpose of this Case Resolution Conference Decision is to address the issue of whether the Application is barred by s. 34(11) of the Code as a result of a companion civil action that was commenced by Statement of Claim issued October 9, 2008 (the “Civil Action”).

3The applicant commenced employment as a full-time staff lawyer for the respondent in September 2002. As a result of certain events in her workplace, the applicant filed a complaint with the Ontario Human Rights Commission on October 13, 2006, alleging discrimination in employment on the basis of ethnicity, place of origin, ancestry and age, as well as alleging that the respondent failed to accommodate her work-related illnesses (the “Original Complaint”).

4On February 16, 2007, the applicant was suspended by the respondent. As a result, the applicant filed a second complaint with the Commission on February 22, 2007 alleging reprisal (the “Reprisal Complaint”).

5Certain amendments to the Code became effective on June 30, 2008, which include the ability of a person to pursue alleged violations of the Code as part of a civil proceeding in court (s.46.1) and the ability of a person who has an outstanding complaint filed with the Commission to effectively transfer that complaint to the Tribunal (s. 53).

6Consequent upon these amendments, the applicant transferred her Reprisal Complaint to the Tribunal pursuant to s. 53(3) of the Code, but also made a conscious and deliberate decision not to transfer her Original Complaint. Instead, the applicant made a decision to pursue the claims of discrimination raised in her Original Complaint as part of the Civil Action commenced in October 2008, which also includes a claim of constructive termination and other claims. While the Statement of Claim expressly seeks an order under s. 46.1 of the Code with regard to the applicant’s claims of discrimination because of her ethnicity, place of origin, ancestry and age, the Statement of Claim does not include any expressly stated claim of reprisal. The Statement of Claim does, however, make reference to the February 16, 2007 suspension and relies upon the suspension as forming one of the bases of her claim that her right to non-discrimination under the Code has been infringed, but again makes no express reference to reprisal.

7The applicant states that this was a deliberate decision on her part in the exercise of what she understands to be her right to pursue the alleged violation of certain rights under the Code in the Civil Action, while nonetheless maintaining her right to pursue the alleged violation of another right under the Code, namely her right to be free from reprisal, in this Application before the Tribunal. The question before me is whether the applicant is correct in her understanding of her rights under the Code as amended, or whether this Application is barred by s. 34(11) as a result of the Civil Action.

8Section 34(11) of the Code provides as follows:

(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; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

9The applicant relies upon the language in the opening line of s. 34(11) that refers to “one of his or her rights” to argue that, if an applicant believes, as she does here, that more than one of her rights under the Code has been infringed, she is only barred from filing an application with respect to the specific rights alleged to have been violated in a civil action and not with respect to any other rights she may have. The applicant argues that this holds true even if, as here, the alleged violation of these different rights arises out of precisely the same factual circumstances. On the basis of the interpretation of s. 34(11) urged upon me by the applicant, the applicant takes the position that she is entitled to pursue her claim that her right to non-discrimination under s. 5 of the Code was infringed in the Civil Action, while at the same time is entitled to pursue her claim that her right to be free from reprisal under s. 8 of the Code was infringed in this Application.

10I do not agree that this is the correct interpretation of the language used in s. 34(11). The applicant wants me to interpret the word “one” in its numeric sense of denoting one right rather than two or three or more rights. However, in my view, the word “one” is used in the context of s. 34(11) in its more general sense as denoting “particular but undefined”. Used in this sense, the phrase “one of his or her rights” has the same meaning as “a right of his or hers”.

11I also am mindful of the later wording of s. 34(11) which states that an application is barred if the alleged “infringement” has been raised in the civil action. While it may be correct to observe that the right to be free from discrimination in employment set out in s. 5(1) of the Code is a separate “right” from the right to be free from reprisal set out in s. 8 of the Code, the “infringement” of a right is prohibited by the same section, namely s. 9 of the Code.

12In the result, in 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.

13This 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.

14In this case, if the applicant’s interpretation of s. 34(11) were accepted, she would be entitled to proceed with her Application before the Tribunal and present all of her evidence relating to the factual circumstances alleged to have given rise to reprisal, and then duplicate all of that same evidence in the Civil Action to support her allegation that she experienced discrimination arising out of precisely the same factual circumstances. In my view, to permit such an interpretation of s. 34(11) of the Code would undermine its intended purpose of preventing such duplication.

15The applicant has expressed concern before me that, if I find that her Application is barred by s. 34(11) of the Code, she may be prejudiced by being unable to raise the reprisal allegation in the Civil Action because it has been more than two years since her suspension and a limitation period may have expired. I do not accept this concern. The Statement of Claim already sets out all of the factual circumstances underlying the Reprisal Complaint and, while not expressly referring to reprisal, includes a general paragraph in with the applicant “pleads and relies upon the Human Rights Code”. The respondent is on record as clearly stating that its position is that the Statement of Claim as currently drafted is broad enough to encompass the reprisal allegation. Further, the respondent has expressly stated that, if the applicant believes that an amendment of the Statement of Claim is required to expressly plead reprisal (which the respondent does not believe is necessary), it will consent to such amendment.

16The applicant has submitted that, despite the respondent’s concessions, the court of its own motion may determine that the Statement of Claim does not plead reprisal and may of its own further motion determine that the reprisal claim is barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, as amended. The applicant relies upon s. 22(1) of that Act which states, “A limitation period under this Act applies despite any agreement to vary or exclude it, subject only to the exceptions in subsections (2) to (6).” However, sub-section (3) of s. 22, which is one of the exceptions, states, “A limitation period under this Act, other than one established by section 15, may be suspended or extended by an agreement made on or after October 19, 2006”. Any limitation period that may be applicable in these circumstances is not a limitation period under s. 15 of that Act.

17The applicant takes the position that under s. 22(3), a limitation period cannot be extended or suspended after the limitation period has expired. No authority is cited to support this proposition. Indeed, in Joseph v. Paramount Canada’s Wonderland, (2008) 2008 ONCA 469, 90 O.R. (3d) 401 (C.A.), the court expressly makes reference to the use of the words “suspend or extend” a limitation period when discussing the common law doctrine of “special circumstances” which formerly permitted a court to allow a claim to proceed even though it was filed after the expiry of a limitation period (see para. 16). While the court in Joseph does find that, in light of the provisions of the Limitations Act, 2002, the court no longer has this authority where a defendant relies upon the expiry of a limitation period in its Statement of Defence, it appears that s. 22(3) of that Act preserves the parties ability to agree to “suspend or extend” a limitation period even after it has expired. The respondent in this case has clearly expressed its agreement to suspend or extend any applicable limitation period, if this is necessary.

18In any event, whether or not any agreement to extend a limitation period is required or permitted, this does not change the fact that on the basis of the proper interpretation of s. 34(11) of the Code, the Application is barred.

19In the result, I find that the Application is barred by s. 34(11) of the Code. The Application is therefore dismissed.