Estate of Pinder Roy v. Wal-Mart Canada Corp., 2010 HRTO 1517

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Estate of Pinder Roy

Applicant

-and-

Wal-Mart Canada Corp., John DiVirgilio and Debbie Stuckey-Hillier

Respondents

interim DECISION

Adjudicator: Judith Hinchman

Date: July 15, 2010

Citation: 2010 HRTO 1517

Indexed as: Roy v. Wal-Mart Canada

written SUBMISSIONS BY

Estate of Pinder Roy, Applicant ) Jeff Hopkins, Counsel

Wal-Mart Canada Corp., John DiVirgilio and Debbie Stuckey-Hillier, Respondents ) Elisha Jamieson, Counsel

INTRODUCTION

1This is an Application filed June 26, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on February 1, 2005 and abandoned upon filing this Application with the Tribunal.

2This Interim Decision addresses respondents’ Request for an Order to dismiss the Application as not within the Tribunal’s jurisdiction. The respondents take the position that upon the death of Ms. Roy on December 19, 2005, the Tribunal lost jurisdiction to hear this Application. The applicant’s counsel advises that Ms. Roy’s daughter, Ms. Santiago will bring a Request for Order to continue this Application on behalf of the estate.

3In a previous Interim Decision (2010 HRTO 64), I directed Ms. Santiago to provide the Tribunal with documents confirming her status as estate representative or to otherwise identify to the Tribunal the estate representative.

4Ms. Roy’s husband, Mr. Charon Roy, has submitted a Proof of Death Certificate identifying him as Executor and a copy of her Last Will and Testament appointing him as Executor and Trustee of her will. Mr. Roy has also submitted a letter to the Tribunal stating that his daughter, Ms. Santiago was acting under his direction when she filed the Application on behalf of the estate.

5I am satisfied that Mr. Roy is authorized to act on behalf of the estate and that as estate representative he authorized his daughter to file the Application on behalf of the estate.

6This Interim Decision also considers the respondents’ request that I defer consideration of this Application pending conclusion of an ongoing civil action.

Background

7In February 2005, Ms. Roy filed her Complaint with the Ontario Human Rights Commission alleging discrimination in employment on the basis of disability and reprisal. In December 2005, she died.

May the Estate bring an Application under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

8The respondents’ position is that the Tribunal lost jurisdiction to hear this Application upon Ms. Roy’s death, first because the Code does not contemplate an estate’s right to continue an application, and second because the Trustee Act, 1990, c. T.23, as amended, does not allow an estate to carry a human rights application.

9On behalf of Ms. Roy, the estate takes the position that the purpose of the Code is to give effect to the principle of equal opportunity for individuals by eradicating individual discrimination, and this task should not be approached in a narrow, literal fashion. Rather, the Code is to be given a large and liberal interpretation that will best attain the objectives of the Code.

10The respondents raise a question of law recently decided by the Tribunal in Morrison v. Ontario Speed Skating Association, 2010 HRTO 1058. In Morrison, the Tribunal refused to dismiss the application of a deceased applicant and addressed all the similar arguments raised by the respondents as well as others raised in that case. I adopt the reasoning of Morrison as summarized below.

a. Is the right compatible with the Code and does the right abate upon death?

11Citing sections 5(1) and 11(1) of the Code, the respondents argue that the Code establishes personal rights, and that remedies to be granted are available to persons. Also citing s. 34(1), the respondents argue that an application either must be brought by a person or pursuant to s. 34(5) another person or organization may apply on behalf of a person if that person both would be entitled to bring an application and consents to the application. The respondents argue that these sections demonstrate the Legislature’s intention that while a person may have the assistance of another person or organization in filing an application, the Legislature did not mean for a deceased person’s rights to be enforced by another because, if so, it would have explicitly provided for that possibility.

12The respondents argue that this position is supported by a recent decision of the British Columbia Supreme Court upheld by the British Columbia Court of Appeal, which ruled that the rights established under the British Columbia Human Rights Code are personal rights that abate upon the death of the person whose rights have been breached. See British Columbia v. Gregoire, 2005 BCCA 585, leave to SCC ref’d 2006 CanLII 10838 (“Gregoire”).

13Finally, the respondents argue that their position is consistent with the Tribunal’s mandate to ensure its process is not abused. An abuse of process would result if complaints can be carried forward on behalf of deceased individuals with the respondents having no way to test the veracity of the allegations.

14In Morrison, supra the Tribunal citing Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665, and B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403, at para. 44, stated, “[i]t is not novel to observe the general principle that a broad, policy-based and liberal interpretation must be given to human rights legislation and the policies behind such legislation.” The Tribunal concluded that “the lack of a specific provision to deal with deceased persons is not indicative of any Legislative intention about what happens to an application after the person’s death and would be counterintuitive to the” principle just articulated. I agree with that conclusion.

15In Morrison, the Tribunal also reviewed at length the cases relied on by the British Columbia Supreme Court in Gregoire as well as several other relevant cases to conclude that Gregoire, a case involving a claim against the government with respect to the provision of government services or benefits, could be distinguished from a case involving allegations of discrimination by a private employer. Alternatively, the Tribunal also found that the cases relied upon by the court in Gregoire suggesting that section 15 Charter equality rights are personal rights that abate upon the death of an applicant are not compelling precedent to find that human rights claims against private actors are similarly personal rights that abate upon death. The Tribunal stated “Ontario Courts have given a clear indication that they consider that claims against private actors under the Ontario Code should not necessarily be considered akin to claims under section 15 of the Charter with respect to government legislation, programs, or benefits.”

16With respect to the respondents’ concern that they will not be able to test the veracity of the allegations, I adopt the reasoning of Morrison that it is premature to dismiss the Application at this stage on this basis because the adjudicator hearing the Application will determine whether to admit the Complaint as evidence and what weight if any to give the statements contained within having regard to the availability of other evidence.

b. Impact of the Trustee Act

17The respondents argue that although the Trustee Act establishes rights for a trustee of an estate, the rights are not sufficiently broad to provide a trustee with the power to carry a human rights application before the Tribunal under the Code. This is because this Act contains clear language that limits a trustee’s power to “actions” that are proceedings commenced in the civil court system by way of a statement of claim, notice of action, counterclaim, cross claim, or third or subsequent party claim, as outlined in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. A human rights application they argue does not fall within this definition and therefore this mechanism does not apply.

18In Morrison, the Tribunal agreed that “an application under the Code is not a common law action,” but rather it is a statutory claim. The Tribunal cited Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, and Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362. Because, the Tribunal reasoned, a statutory claim can not be extinguished by the common law (Stevenson v. Canadian National Railway Co., [2001] C.H.R.D. no. 28 (CHRT)), it was unnecessary for the Tribunal to decide whether a human rights application is an “action” within the meaning of s. 38 of the Trustee Act. The Tribunal concluded that because “a claim under the Code is not a common law action, a common law principle that might otherwise extinguish the applicant’s claim is irrelevant.”

19Adopting and following that reasoning, because this human rights Application is not a common law action, it was not extinguished by Ms. Roy’s death.

20For all the above reasons and adopting the analysis of Morrison, supra, upon the death of Ms. Roy on December 19, 2005, the Tribunal did not lose jurisdiction to hear this Application and it would not be appropriate to dismiss it for that reason.

Should the Tribunal Defer Consideration of this Application Pending the Conclusion of the Civil Action?

21Pursuant to Rule 16 of the Tribunal’s Rules of Procedure for Transitional Applications (the “Transitional Rules”), this Tribunal may defer consideration of an application, on such terms as it may determine. Transitional Rule 16.3 states that the Tribunal will not defer an application without first giving all the parties an opportunity to make submissions. Thus the parties were afforded an opportunity to make submissions on this question.

22The Application alleges discrimination in employment on the basis of disability and reprisal. In particular, the Application alleges several incidents in the workplace that represent harassment and discrimination based on those grounds. The Application also alleges that Ms. Roy complained to the corporate respondent who failed to effectively deal with her complaints and that the corporate respondent permitted a poisoned and hostile work environment to persist. Ultimately Ms. Roy’s employment was terminated on August 5, 2004.

23On February 1, 2005, Ms. Roy commenced the civil action against the corporate respondent seeking general damages pleading that she was terminated without cause and was thus denied her entitlement to a reasonable notice period of 16 months.

24Section 34(11) of the Code provides, in part:

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.

25In the earlier Interim Decision (2010 HRTO 64), the Tribunal found that s. 34(11) does not apply to bar the Application. I will now consider whether the Application should nonetheless be deferred pending the outcome of the civil action.

26Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

27In Harrison v. 2020177 Ontario, 2009 HRTO 1898, the Tribunal stated that some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. For example, the Tribunal has said that it will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. See Krieger v. Toronto Police Service Board, 2008 HRTO 270.

28The applicant’s counsel takes the position that the civil action seeks only damages representing pay in lieu of notice, and does not allege any human rights violations or claim damages for any such human rights violations. The respondents’ position is that the civil action is based on the exact same sequence of events that led to the Application and that it is implied in the Statement of Claim that the harassment and differential treatment alleged were based on Ms. Roy’s claimed disability.

29When considering the applicability of s. 34(11) in the earlier Interim Decision , I found that in the civil action, Ms. Roy does not make a specific claim that her rights under the Code were infringed by the respondents and does not seek a remedy for an alleged breach of the Code. I further found that Ms Roy’s claim that she was terminated without cause with insufficient notice as articulated in her Statement of Claim is not sufficiently broad to encompass a claim of a violation under the Code. In her Statement of Claim, she pleads only that she was terminated without cause and therefore the corporate respondent breached an implied term in her contract of employment to compensate her for a reasonable notice period.

30Therefore in the circumstances of this case, I find that deferral is not appropriate. While there may be some overlap in the evidence in both cases, on balance, the overlap does not justify deferring this Application.