Borden v. Toronto Grace Health Centre, 2010 HRTO 1109

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Borden

Applicant

-and-

Toronto Grace Health Centre

Respondent

DECISION

Adjudicator: David A. Wright

Date: May 18, 2010

Citation: 2010 HRTO 1109

Indexed as: Borden v. Toronto Grace Health Centre

1This Decision addresses the issue of whether this Application, filed under s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), should be dismissed pursuant to s. 34(11) as outside the Tribunal’s jurisdiction. The Application was filed on November 30, 2009, and alleges discrimination with respect to employment because of disability, family status and marital status. On February 4, 2010, the applicant commenced an action in the Superior Court of Justice that, the respondent alleges, seeks human rights remedies. Accordingly, the respondent requests that the Application be dismissed.

2Section 34(11) of the Code reads as follows:

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

3In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at para. 6, the Tribunal described the operation of s. 34(11) as follows:

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.

4In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11 the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to apply:

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.

To find that s. 34(11) only applies if s. 46.1 is specifically 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.

5In the HRTO Application, the applicant alleges that she required and asked for accommodation by the respondent of a stress-related disability, commencing in 2007, and that the respondent failed to do so in the period prior to her resignation on October 9, 2009. She also alleges that she was discriminated against on the basis of marital status and family status because of an e-mail that her supervisor allegedly sent to a co-worker detailing information about her family status and marital status.

6The Statement of Claim in court does not specifically cite the Code. However, it alleges, among other things, that the “defendant failed to implement or provide an accommodation or modified duties”. It alleges that the defendant and the supervisor who sent the e-mail “became unduly familiar and intrusive in the plaintiff’s private and family life, made offensive comments and actions designed to demean, belittle or humiliate the plaintiff”. It alleges “harassment” and “discrimination” by the respondent and seeks damages including for “inability to do work”, “interference with her ability to earn a living”, “mental anguish”, and “fear for her safety and ill health”.

7In substance, the applicant has raised the same facts and issues in her Statement of Claim and in her HRTO Application and sought remedies for them in both fora. While the court action does not specifically cite the Code, it asks the court to find an infringement of the duty to accommodate, harassment and discrimination by the defendant and seeks damages for the alleged violation of such duties. Accordingly, the facts and issues are the same as those in the HRTO Application, and s. 34(11) is therefore triggered.

8The applicant argues that it is not yet clear if there is any duplication of claims, since the civil action has not yet been determined. The applicant also states that she is pursuing the Application because of particular remedies she seeks from the Tribunal. However, s. 34(11) is based on the fact that a Code matter has been raised in a civil action, not on the outcome of that process. The statute requires parties to make a choice about where they will pursue their Code-related allegations.

9The applicant also notes that her Application to the HRTO was filed before her court action, and that she did not expect to begin civil proceedings at that time. In essence, this argument suggests that s. 34(11) applies only to applications that were filed with the HRTO after, and not before, a court action raising Code issues has been commenced. It suggests that the word “make” in s. 34(11) means only the starting of a Tribunal application and that an applicant may continue an application if a duplicative court action is commenced after the Application is ongoing. The Tribunal has not previously addressed this suggested interpretation of s. 34(11).

10The question I must determine is whether the word “make” in s. 34(11) (“may not make an application… with respect to that right”) refers only to the commencement of the HRTO Application process, or includes the continuation of that process. The analysis must be guided by the contextual approach to statutory interpretation in which statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58 at para. 16; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42.

11In my view, s. 34(11) applies to bar an application from proceeding where a civil action has been commenced both after and before the application. The word “make” is intended to refer to both the commencement and continuation of the application. There is no principled basis for the interpretation advanced by the applicant. The purpose of the provision is to avoid duplication of court and HRTO proceedings alleging particular breaches of the Code, and there is no logical reason why the order in which the two proceedings were commenced should affect whether the Tribunal has jurisdiction. The applicant’s interpretation would make the provision easy to circumvent, and would defeat the clear policy intent of the Legislature.

12Accordingly, I find that the applicant may not continue to make this Application in light of the commencement of the court action and it is outside the Tribunal’s jurisdiction. The Application is therefore dismissed.