HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shirley Williams
Applicant
-and-
Ontario Lottery and Gaming Corporation and Eva Cziffer
Respondents
DECISION
Adjudicator: David Shannon
Indexed as: Williams v. Ontario Lottery and Gaming Corporation
AppearanceS BY
Shirley Williams, Applicant ) Joseph Bisceglia, Counsel,
Ontario Lottery and Gaming Corporation ) Janice Lynn Thomson,
and Eva Cziffer, Respondents ) Counsel )
1This Decision addresses whether the Application is barred by section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) because the the applicant is a plaintiff in an ongoing civil proceeding in which, among other things, she seeks remedies for alleged breaches of the Code.
2A hearing in this matter was held on May 10, 2010. The parties attended and the respondents requested a dismissal of the hearing pursuant to s. 34(11) of the Code.
Background
3The Application, dated August 6, 2008, alleges that the respondents discriminated against the applicant on the basis of disability by failing to accommodate her disability and dismissing her from employment.
4The applicant commenced a wrongful dismissal action in the Superior Court of Justice against the respondents. She pleads that the breaches of the Code entitle her to bad faith, punitive and exemplary damages.
5In Paragraph 25 of the Statement of Claim, the applicant “pleads and relies upon the complaint that she filed with the Human Rights Commission”. At paragraph 26, she “pleads and relies” on provisions of the Code.
DECISION
6Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
7Section 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:
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.
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.
8The applicant argues that the Request to Dismiss is premature because there is no way of predicting whether the issues, remedies or facts will be same before the Court until the trial is complete. In the applicant’s estimation the civil action is broader and keeping this Tribunal Application alive allows for a safety net should that happen. She therefore asks for a deferral rather than a dismissal.
9The respondents argue that the claim and Application in question arises from similar facts, contains similar issues, requires determination of the allegations of discrimination pursuant to the Code, and seek like remedies. Accordingly, s. 34(11) applies and this Application must be dismissed. I agree.
10This Tribunal has noted in the past that, although issues under the Code may arise in various other types of legal proceedings, the legislation is clear that if a civil proceeding as described in s. 34(11) is commenced, then the Tribunal has no jurisdiction over the application. Furthermore, s. 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code, and is triggered by an applicant’s decision to raise the Code and seek remedies for its violation in a court action. See: Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282; Galler v. Ecom Food Industries, 2010 HRTO 326.
11To find that s. 34(11) should be ignored or not applied in place of a deferral that acts as a re-litigation safety net would insult 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. The Tribunal therefore has no jurisdiction over the Application.
12The Application is dismissed.
Dated at Toronto, this 1st day of June, 2010.
“Signed by”
David Shannon
Member