Romulo Salvador v. Genpak LP, 2010 HRTO 1733

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Romulo Salvador

Applicant

-and-

Genpak LP

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: August 23, 2010

Citation: 2010 HRTO 1733

Indexed as: Salvador v. Genpak

WRITTEN SUBMISSIONS BY

Romulo Salvador, Applicant ) Stephen Ellis, Counsel

Genpak LP, Respondent ) Genny Na, Counsel

BACKGROUND

1The applicant filed the Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 24, 2010, alleging discrimination in employment on the basis of disability.

2The respondent filed a complete Response on July 20, 2010, in which it asks the Tribunal to dismiss the Application as a preliminary matter. The request is based on section 34(11), which bars a person from making an application to the Tribunal where there is an ongoing civil claim in the courts which seeks remedies for discrimination arising from the same events; and section 45.1, because, it argues, the substance of the Application has been appropriately dealt with in another proceeding. Alternatively, the respondent seeks deferral of the Application pending the completion of concurrent litigation involving the same parties.

3On August 12, 2010, the applicant filed submissions opposing both the respondent’s request for dismissal and its alternative request for deferral.

4This Interim Decision deals with the respondent’s Request.

Parallel Civil Claim

5The Response asks for early dismissal pursuant to section 34(11) on the basis that the applicant filed a Statement of Claim (the “Claim”) in Small Claims Court alleging that he had been wrongfully dismissed. The Claim was filed on March 28, 2010, and issued by the Court on June 7, 2010. The Respondent submits that the Claim is based on the same facts as the Application before the Tribunal. The applicant argues that the civil action is for wrongful dismissal only, and does not seek damages for an alleged breach of the Code.

6In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at para. 10, the Tribunal explained the significance of section 34(11):

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.

7The question for me to determine is whether the applicant decided to seek remedies for alleged breaches of the Code by way of a court action. Having reviewed the Application and the Statement of Claim, I find that the applicant has not triggered section 34(11) because he has not raised the Code in his civil action. Similarity in the facts does not amount to duplication of legal issues. The determinative factor in this decision is that the Claim makes no mention of the Code or of any allegations of discrimination. Duplication of legal proceedings arising out of the same facts is not a basis for declining jurisdiction over an Application: see Baker v. Sears Canada, 2009 HRTO 1014, at para. 12:

The fact that the case could potentially have been commenced as a single court action alleging both wrongful dismissal and discrimination is a matter of personal choice the legislature has left up to individuals bringing such cases. It is not within the Tribunal’s jurisdiction or mandate to instruct parties where to bring their cases. The Tribunal’s function is to determine whether it has the jurisdiction to accept the Application as filed. In this case, I find the Tribunal does have jurisdiction over the matter.

8I agree that because the applicant has framed the Claim strictly as a wrongful dismissal action, section 34(11) does not apply to remove jurisdiction from the Tribunal to consider this Application.

Remaining Requests

9The respondent also seeks dismissal on the basis that another proceeding has appropriately dealt with the substance of the Application and on the basis that the applicant has failed to establish a prima facie case. I cannot determine these issues without an oral hearing.

10Given that both parties have indicated a willingness to attempt mediation, it is appropriate in the circumstances for the Tribunal to schedule mediation. If the parties do not reach a settlement at mediation, the Application will be set down for a preliminary hearing to hear submissions and, if necessary, evidence, on the issue of whether the Application should be dismissed or deferred.

ORDER

11The Tribunal orders as follows:

i. The request for early dismissal pursuant to section 34(11) is refused.

ii. The Registrar shall schedule mediation.

12I am not seized of this matter.