HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jacques Perron
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Yvonne Monto
Respondent
A N D B E T W E E N:
Jacques Perron
Complainant
-and-
Conseil Scolaire de District Catholique des Aurores Boréales and Roger LePage
Respondents
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Perron v. Monto
WRITTEN SUBMISSIONS BY
Jacques Perron, Complainant ) On his own behalf
Ontario Human Rights Commission ) Yavar Hameed, ) Counsel
Yvonne Monto, Respondent ) Jeff Rooney, ) Representative
Le Conseil Scolaire de District Catholique ) Kevin D. MacNeill, Des Aurores Boréales and Roger Lepage ) Counsel
INTRODUCTION
1The complainant in this matter alleges that he experienced discrimination with respect to employment because of sexual orientation and handicap, as well as reprisals under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Tribunal File Number HR-1819-08 is a complaint against Yvonne Monto and others, filed on December 26, 2004. Tribunal File Number HR-1820-08 is a complaint against the Conseil Scolaire de District Catholique des Aurores Boréales (the Board), Roger LePage and an additional respondent, filed on August 9, 2007. The Ontario Human Rights Commission (the Commission) combined the two complaints and referred them to the Tribunal on December 19, 2008.
2In an Interim Decision in this matter, 2009 HRTO 1228, the Tribunal made certain directions including the removal of three respondents.
3This Interim Decision deals with the issue of whether the complaints are outside the Tribunal's jurisdiction as a result of s.34(11) of the Code. The parties have been given the opportunity to and have filed written submissions addressing the issue. For the reasons that follow, the Tribunal decides that the complaint against the Board and Roger LePage is barred under section 34(11) and it is dismissed. The Tribunal will direct the Commission to advise whether it intends to continue the complaint as if it were made under section 35. The complaint against Yvonne Monto will proceed.
BACKGROUND
4The complainant was at the relevant times the principal of a school, employed by the Ignace Roman Catholic Separate School Board and then, through a merger, by the respondent Board. The complaint against Yvonne Monto of December 2004 relates to an alleged disclosure by this respondent of the complainant's sexual orientation. It appears that this respondent was a secretary in the school, reporting to the complainant. At the time of the alleged disclosure she had filed a grievance based on a complaint of harassment against the complainant and the complainant was on leave with pay as a result of the investigation.
5In March 2006, the complainant was suspended without pay, and subsequently dismissed in November 2006. The complainant, through legal counsel, issued a Notice of Action in the Superior Court of Justice on June 15, 2006, followed by a Statement of Claim on September 1, 2006. The Claim names the Board as defendant. In the Claim, the complainant seeks damages for "personal injury and as result of the intentional tort of infliction of mental harm...and for wrongful dismissal."
6The Claim relies on many of the same events which form the basis of the two complaints made to the Commission, although the second complaint was filed later, in August 2007. In the Claim, among other things, the complainant refers to his sexual orientation, and the manner in which it was divulged at a meeting attended by the respondent Monto. The Claim refers to the discontinuation of the complainant's salary, the Board's refusal to pay him for accumulated sick days, and then the decision to terminate his employment.
7The Claim states that "[i]t is the Plaintiff's position that the Defendant terminated the employment without just cause. The true reason for his termination was because of his sexual orientation and because his position could be replaced with a person requiring a smaller salary." Under the heading "cause of action", the Claim refers to a breach of the Employment Standards Act, his employment contract, and his contractual entitlement to be paid accumulated sick days. The Claim also alleges that the Board "committed the tort of intentional mental suffering by harming him by purposely denying his sick days and terminating him while he was ill with the sole purpose to harm him even more."
8The complainant claims damages for the health effects of the Board's actions, humiliation, loss of peaceful existence and other non-monetary losses, as well as for losses arising out of breach of the employment contract and intentional mental suffering.
9It appears that in the fall of 2006, following the complainant's dismissal, the Board notified the Ontario College of Teachers of the complainant's dismissal for cause. The Board states that its actions in this regard were pursuant to a statutory duty under the Ontario College of Teachers Act, 1996, S.O. 1996, C.12, as amended.
10Subsequent to the filing of the Claim, the Board brought a motion for security for costs in the Court. The Board's motion resulted in a Decision on September 18, 2007 in which the Court ordered the complainant to pay $25,000 as security for costs by October 30, 2007, failing which the Board could apply to have the action dismissed.
11The human rights complaint against the Board and Roger Lepage is dated August 9, 2007 and alleges, among other things, that the motion for security for costs and report to the College of Teachers of Ontario were reprisals under the Code against the complainant.
12Roger LePage was at the relevant times the Director of the Human Resources Department of the Board. The complaint against him and the Board is described by the complainant as including:
- Actions taken with the view to firing the complainant under "whatever pretext" and the construction of a false and libellous file to secure approval for the complainant's dismissal by the Board
- Reduction and then withdrawal of pay while the complainant was on a leave of absence due to sickness
- Refusal to pay 300 days of accumulated sick leave
- The initiation of a motion in the Superior Court of Justice for security for costs in relation to civil litigation initiated by the complainant, as a reprisal
- The filing of a complaint with the Ontario College of Teachers (the College), as a reprisal
13In general, the complainant states that the refusal to pay his salary out of accumulated sick days and the breach of his employment contract constituted discrimination against him on the basis of sexual orientation.
14In his complaints, the complainant requests as remedy, among other things, "corrections for loss of reputation", monetary compensation for loss of salary and benefits, and "specific and general damages". In the complaint against the respondent Monto, he requests an order for monetary compensation by her and "a reprimand".
15The complainant did not pay $25,000 into court as directed, and the Board brought a motion in May 2008 for dismissal of the action. The complainant filed his own motion, heard together with that of the Board, asking for partial summary judgement in relation to his claim for payment for accumulated sick days.
16By Decision dated June 30, 2008, the Court granted the Board's motion and dismissed the complainant's motion. On July 11, 2008, the complainant initiated an appeal from the Court's Decision, as well as from the Decision of September 18, 2007, to the Court of Appeal.
17In October 2008, the Commission's investigator issued a Case Analysis Report on each of the complaints, indicating that a recommendation would be made to refer the complaints to the Tribunal. Among other things, the investigator referred to the complainant's view that the disclosure of his sexual orientation resulted in negative consequences to his employment and was ultimately the basis for the decision to terminate his employment.
18In December 2008, the Commission decided to refer part of the subject matter of the complaints to the Tribunal. It decided not to refer the complaints with respect to a named individual respondent.
19The Court proceedings have continued. In March 2009, the Court ordered the complainant to pay costs in the amount of over $60,000 to the Board with respect to the court proceedings to that point. The complainant declared bankruptcy on or about October 31, 2009. Recently, on March 31, 2010, the parties appeared before a judge of the Court of Appeal on the question of continuing the appeal from the dismissal of the action, in the name of the Trustee in Bankruptcy. The matter was adjourned in order to give notice to the Trustee.
DECISION
20Section 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.
21In 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.
22In 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.
23The Tribunal has also determined that section 34(11) applies to complaints referred by the Commission, where a hearing on the merits has not commenced. See Guilmoutdinov v. Ontario College of Teachers, 2009 HRTO 1843.
24In this case, the Statement of Claim does not specifically cite the Code. Nor does it refer to section 46.1, which did not exist at the time the Claim was issued. Nonetheless, it is clear that the Claim alleges a discriminatory motive for the complainant's dismissal and seeks damages accordingly. The following paragraph in the Claim makes this apparent:
On March 31st, 2006, the fiscal year ended for the Defendant. It is the Plaintiff's position that the Defendant terminated the employment without just cause. The true reason for his termination was because of his sexual orientation and because his position could be replaced with a person requiring a smaller salary. It was urgent of the Defendant to terminate the Plaintiff before March 31st for budgetary policies according to the Plaintiff's theory.
25Other paragraphs in the Statement of Claim allege the public divulgation of the complainant's sexual orientation, the continuing efforts by the Board to investigate and interview the complainant while he was ill, his suspension without pay and the refusal by the Board to pay accumulated sick days. All of these are matters raised in his two complaints before the Tribunal. Read as a whole, the Statement of Claim rests on the same overall assertion of unequal treatment or harassment of the complainant, on the basis of his sexual orientation and disability, as that made in the complaints. The Claim seeks monetary compensation for, among other things, "total humiliation", "loss of peaceful existence", and "intentional mental suffering", losses which could be covered by a court order under section 46.1 for injury to "dignity, feelings and self-respect", and which the Tribunal could also address under section 45.2 of the Code.
26The fact that the complainant alleges that the motion for security for costs and report to the College are reprisals under the Code also suggests that as of August 2007, when he filed his complaint with the Commission, he saw his court action as a means of pursuing his rights under the Code.
27On the whole, I find this case different from the situation addressed in Free v. Magnetawan (Municipality), 2010 HRTO 179, in which the Tribunal found that the applicant's claim did not raise the Code directly or indirectly, did not cite the Code, refrained from alleging discrimination and only sought damages for wrongful dismissal and defamation.
28The allegations of reprisal require a separate analysis, in that some of the events covered by those allegations occurred after the Statement of Claim was drafted. I find, however, that these allegations cannot be separated from the issues raised in the Statement of Claim. First, the litigation over the Board's motion for security for costs is proceeding before the Court of Appeal. It would defeat the purpose of section 34(11), and encourage the duplication of proceedings, to permit the complainant to pursue a reprisal claim before the Tribunal over an issue that is inextricably linked to his civil suit. In applying section 34(11), the Tribunal looks to the essence of the two legal proceedings in order to determine whether as a whole they seek remedies for infringement of the same rights under the Code. The Tribunal's assessment is not governed by a clause-by-clause comparison, nor should it be driven by the vagaries of timing or the technicalities of pleadings.
29Second, to the extent that part of the reprisal claim is based on a report to the College, this issue is also inextricably linked to the complainant's claim of wrongful termination from employment based on his sexual orientation. The actions of the Board in reporting the dismissal to the College are founded on the same events that led to the complainant's dismissal. It would not serve the coherent and orderly administration of justice for the Tribunal to find that section 34(11) bars one part of the complaint but not another that is based on the same events.
30The Commission submits that the court has not, in dismissing the complainant's action, decided his claim of discrimination, and that it is accordingly not barred by section 34(11). However, as the dismissal of the action is under appeal to the court of appeal, it is not section 34(11)(b) that applies, but rather section 34(11)(a), in that the proceeding "has not been finally determined or withdrawn".
31The Commission also submits that the claim before the court is based on breach of a contract of employment and not on discrimination. I agree that taken on their own, some elements of the civil claim, such as the claim over unpaid sick days, do not expressly raise an issue of discrimination. However, the same may be said for the description of this issue (as well as others) in the complaint itself, in which the theory of discrimination is not clearly articulated, and appears to allege breaches of the employment contract more than discrimination on the basis of a ground under the Code. The complainant appears to assert that non-adherence to his contract of his employment is in itself discriminatory.
32The claim for sick pay is also linked to the reasons for the termination, which the complainant alleges were discriminatory, in that the Board's position is that a dismissal for cause disentitles the complainant from a payout of accumulated sick days. Again, it would not serve the orderly administration of justice to bar the pursuit of one issue before the Tribunal, but not another issue which the applicant himself believes to be fundamentally related.
33The complainant asserts that the result of his bankruptcy is that he is no longer a party to the court proceedings. He encloses a copy of correspondence from his legal counsel that states that, in his opinion, the complainant's involvement in the civil proceedings has ceased in law, and it is the trustee in bankruptcy that is now the plaintiff in the action, rather than the complainant.
34I cannot agree that the complainant's bankruptcy, and the role of the Trustee in Bankruptcy, nullifies the application of section 34(11) in circumstances where it otherwise applies. The civil proceeding is based on the complainant's claim that he has been wronged in law by the Board. The Trustee in Bankruptcy has no independent legal claims, apart from those of the complainant. Its goal in continuing the action, if it so chooses, is not to vindicate its own rights, but to pursue the complainant's cause of action with a view to maximizing the assets available to the complainant's creditors. I also do not agree with the complainant's submission that the endorsement of March 31, 2010 by a judge of the Court of Appeal disposes in any way with the action, as it simply orders an adjournment pending notice.
35In sum, I find that the complainant's complaint against the Board and Roger LePage must be dismissed under section 34(11).
36I find that section 34(11) does not bar the complaint against Yvonne Monto from proceeding. Although the Claim refers to her and her role in some of the events, it does not name her as a defendant nor seek any remedy against her. This complaint can therefore proceed.
37In accordance with the approach in Guilmoutdinov, supra, the Tribunal directs the Commission to advise it whether it intends to proceed with the complaint against the Board and Roger LePage as if it were an application under section 35, and seek remedies under section 45.3 of the Code. The Commission's response must be sent to the parties and the Tribunal by July 14, 2010. If the Commission chooses to continue the complaint, the Tribunal may make further directions with respect to other preliminary issues.
38In any event, the Tribunal will convene a case management conference call with the parties following the Commission's response.
Dated at Toronto, this 23rd day of June, 2010.
"signed by"______
Sherry Liang
Vice-chair