HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Birgit Richards
Applicant
-and-
Community Living Burlington
Respondent
interim DECISION
Adjudicator: Michelle Flaherty
Indexed as: Richards v. Community Living Burlington
1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), raises allegations that the respondent discriminated against the applicant on the basis of disability in the context of employment.
2In essence, the applicant argues that the respondent disciplined her unfairly, failed to accommodate her disability, and ultimately forced her resignation.
3The respondent has filed a Response asking that the Application be dismissed because a claim based on the same facts had been filed in civil court, requesting a remedy based on the alleged human rights violation. In the alternative, the respondent seeks the deferral of the Application pending the outcome of the civil action.
4The applicant has filed a Statement of Claim seeking $25,000 in damages for wrongful and constructive dismissal. In the Statement of Claim, the applicant alleges that the respondent did not “accommodate or support the Plaintiff for her stress and/or emotional anxiety disability... contrary to law.”
5Counsel for the applicant has filed a Reply and a Response to a Request for an Order objecting to the dismissal of the Application because of the civil suit. The applicant’s materials do not, however, address the request for deferral.
REQUEST TO DISMISS
6Section 34(11) of the Code states:
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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. 2006, c. 30, s. 5.The applicant argues that a argues that the Application should be dismissed because the applicant has signed a full and final release, which addresses the subject matter of the Application.
7Section 46.1(1) of the Code stipulates:
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.
8The applicant argues that section 34(11) does not apply because, in the Statement of Claim, she is not seeking a remedy under section 46.1(1) of the Code. Rather, she argues that the civil suit is restricted to a request for compensation for the failure to give proper notice of termination through the doctrine of constructive dismissal.
9Although it is apparent that the Application and the Statement of Claim are based on the same chain of events, the Statement of Claim does not explicitly seek damages for a violation of the Code.
10In the circumstances and at this stage of the proceedings, I find that section 34(11) does not apply to bar the Application. The respondent’s request that the Application be dismissed is therefore denied.
REQUEST TO DEFER
11The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
12The initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same human rights issues are being raised before another decision-maker with the authority to deal with those issues. When human rights issues are not clearly engaged in the other proceeding, but the application raises facts or issues which overlap with those in another concurrent proceeding, the Tribunal may nonetheless defer determination of the application. In making this determination the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it.
13In the circumstances, I find that it is appropriate to defer this Application pending the completion of the civil proceeding.
14While the applicant is not specifically seeking human rights remedies in the court action, her statement of claim does make reference to the respondent’s legal obligation to accommodate the applicant’s disability. While it is not, at this stage of the proceedings, apparent that the court action raises the same legal issues as the Application, I am satisfied that there is such significant factual overlap that it is appropriate to defer the Application in the circumstances.
15The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the civil proceeding has been concluded.
16I am not seized of this matter.
Dated at Toronto, this 30th day of June, 2010.
“Signed by”
Michelle Flaherty
Vice-chair