Norma Ross v. Ace INA Insurance, 2010 HRTO 1362

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norma Ross Applicant

-and-

Ace INA Insurance Respondent

DECISION

Adjudicator: Sherry Liang Date: June 16, 2010 Citation: 2010 HRTO 1362 Indexed as: Ross v. Ace INA Insurance

WRITTEN SUBMISSIONS BY

Norma Ross, Applicant ) Harry Kopyto, Representative

1This is an Application filed on April 6, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2On May 19, 2010, the Tribunal issued a Notice of Intent to Dismiss as it appeared that the Application was outside the Tribunal’s jurisdiction because of the filing of a civil claim by the applicant. The applicant was directed to make written submissions in response to the issue raised in the Notice.

3The applicant’s representative filed written submissions on June 9 and 14, 2010. On consideration of those submissions and the material before me, I find that this Application is barred under section 34(11) of the Code and cannot proceed.

4Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

5In 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.

6In 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.

7In this Application, the applicant alleges discrimination in employment on the grounds of race, colour, place of origin, disability and sex. In her narrative, she alleges that, based on an anonymous complaint, her employer conducted a secret investigation into purported misconduct by her, which resulted in her termination from employment. She alleges that the manner in which she was dismissed rendered her disabled. Among other things, she alleges that she was compelled to participate in a lengthy interview in a small room with four male employees or agents of her employer about the purported misconduct, which was coercive and stressful. The applicant claims that the meeting aggravated an illness that employer was aware of, resulting in a stroke approximately a month afterwards.

8The applicant states that she was dismissed by letter on April 3, 2009. The applicant maintains that the allegations of misconduct against her are false. She maintains that as they are based on alleged conflict of interest arising out of her husband’s activities, this constitutes discrimination on the grounds of marital and family relationship. The applicant states that she was the only African Canadian woman who was a member of the Board of Directors of her employer and that her race, as well as relationship with her husband, resulted in her differential treatment by the respondent.

9As remedy, among other things, the applicant requests financial compensation in the amount of $5 million, as an “estimate of expenses that I will need to pay for to maintain me for the rest of my life along with compensation for lost earnings and loss of reputation, indignity, pain and suffering and exemplary damages.”

10On May 22, 2009, the applicant commenced an action in the Ontario Court of Justice based on her termination from employment and the circumstances of the termination, naming the respondent as the defendant.

11The Statement of Claim rests largely on the same facts and events described in the Application. It asserts that the respondent conducted a clandestine investigation into the applicant’s conduct, resulting in her termination in a manner that rendered her disabled. It refers to the meeting with four male employees or agents that the applicant alleges caused her severe stress. The Statement of Claim alleges, as does the Application, that the respondent knew of her medical condition and acted in a manner that aggravated her illness and eventually resulted in a stroke.

12The Statement of Claim asserts that the respondent breached its employment contract with her on the basis of untrue allegations, and that her termination was therefore without cause. It alleges that the respondent’s conduct towards her “deviated from its ordinary investigational and human resources practices at least in part as a result of the Defendant’s discriminatory attitude to the Plaintiff who was the only African-Canadian member to ever be appointed to the Defendant’s Board of Directors.”

13The Claim states that “the Plaintiff relies on the Employment Standards Act, the Occupational Health & Safety Act and the Ontario Human Rights Code.” It seeks “special, general, punitive and exemplary damages” in the amount of $3.5 million.

14The applicant’s representative submits, among other things, that while some of the material facts pleaded in the Claim may also be relevant to the content of her Application, it cannot be reasonably said that the civil claim arises out of the alleged Code infringement. He submits that allegations of discrimination are neither advanced nor integral to her civil case. In his letter of June 14, he elaborates on his submissions and asserts that several matters will be addressed in the Application that will not be addressed in the civil action, including:

• Payment of short term disability payments to which the applicant was entitled but did not receive as the respondent took the position that it was deducting the payments from monies she embezzled;

• Payment of certain long term disability benefits that should have been but were not treated as tax exempt benefits ;

• Recovery of personal belongings from her office;

• The opportunity to convert her employment-related benefit plans to a private policy;

• Payment of a $10,000 critical illness lump sum payout

15The applicant’s representative submits that all of the above constitutes discriminatory and differential treatment against the application based on the grounds identified in the Application. He states that they are not the subject matter of her legal claim, and that some of them even occurred after she issued her claim. He submits that the only forum where she could seek compensation for this discriminatory treatment is at the Tribunal.

16It should be noted that none of the above issues was identified in the Application as instances of discrimination against the applicant, and were only raised in response to the Tribunal’s Notice. In any event, on a plain reading of the Statement of Claim, it cannot be said that these claims are not part of the issues raised in the civil action. The applicant seeks damages in the civil claim which essentially mirror those sought in the Application. Her claim of damages in both proceedings includes a claim for special damages which would encompass the losses described in paragraph 14 above. Among other things, her Statement of Claim refers to the denial to various benefits as a result of her wrongful termination.

17Further, to the extent that her civil claim asserts that the respondent’s treatment of her was based in part on discriminatory reasons, the applicant is seeking damages in the courts for the same infringement of Code rights raised in her Application. In both the Application and the civil claim, any issue about whether the applicant is entitled to be paid these amounts is derivative of her claim that her dismissal was wrongful, and that it was based in part on her race.

18I therefore find that through her civil claim, the applicant is seeking a remedy for the same alleged infringement of her rights under the Code as in this Application. Finally, I am satisfied that the reliance in the Application on grounds of discrimination (such as marital status and family status) which are not specifically referred to in the Statement of Claim does not serve to distinguish the two proceedings for the purpose of section 34(11). It would defeat the purpose of section 34(11) to permit an applicant to advance a claim of discrimination before the Tribunal based on some grounds under the Code, while pursuing a claim of discrimination before the courts based on the same set of facts, but other Code grounds. See Khan v. CCSI COMPUCON Systems, 2009 HRTO 2220.

19It is therefore plain and obvious that section 34(11) bars this Application, and it is dismissed.