Ciampa v. York University, 2010 HRTO 1747

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gina Ciampa Applicant

-and-

York University and Michael Markicevic Respondents

DECISION

Adjudicator: Ena Chadha Date: August 24, 2010 Citation: 2010 HRTO 1747 Indexed as: Ciampa v. York University

WRITTEN SUBMISSIONS BY

Gina Ciampa, Applicant ) On her own behalf

York University, Respondent ) Brian Wasyliw, Counsel

Michael Markicevic, Personal ) James Heeney, Counsel Respondent )

1This Decision deals with an Application filed on March 8, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") alleging discrimination with respect to employment because of family status and association with a person identified by a Code-related ground.

2The respondents filed a partial Response and reserved the right to file a complete Response following the disposition of their Request seeking dismissal of the Application under section 34(11) of the Code and, in the alternative, deferral pending the outcome of a civil proceeding. The respondents argue that section 34(11) bars this Application from proceeding because the applicant commenced a civil claim based on the same facts and allegations and seeking similar remedies.

3In a Notice dated July 29, 2010, the Tribunal directed the applicant to respond to the respondents' request to dismiss and/or defer by August 12, 2010.

4The applicant filed submissions, wherein she states her civil claim is based on general allegations of harassment, intimidation and abuse, and not Code-related discrimination, harassment and poisoned work environment as asserted in her Application.

BACKGROUND

5The Application relates to a meeting between the applicant and the individual respondent on October 2, 2009. The applicant alleges that, during this meeting, the individual respondent subjected the applicant to family status discrimination and harassment on the basis of her association with her disabled twin daughters when the individual respondent yelled at the applicant and stated "And another thing, keep your fucking family problems at home!" The applicant alleges that the individual respondent's remarks regarding her alleged "family problems" created a poisoned work environment. The Application notes that as a result of this October 2, 2009 meeting, the applicant went off on sick leave and subsequently filed a civil claim. The applicant seeks $3750 for each prohibited ground of discrimination that she allegedly experienced. The Application narrative states that "[t]he majority of the meeting is now related to a civil claim that [the applicant] has filed against the respondent organization". In the concluding paragraphs of her narrative, the applicant suggests that the civil claim does not address the human rights concerns raised in the Application.

6The applicant's Statement of Claim alleges that the plaintiff's (applicant's) employment was wrongfully terminated following the October 2, 2009 incident wherein the defendant (individual respondent) verbally abused her. Although the Statement of Claim indicates that the defendant previously subjected the plaintiff to abuse and harassment, the Statement of Claim provides no particulars in this regard. The Statement of Claim seeks general and punitive damages in the amount of $500,000.

DECISION

7Section 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.

8Section 46.1 reads as follows:

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:

1. 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.

2. 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.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

9In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11 the Tribunal discussed the purpose of section 34(11) and held that a claim need not specifically plead section 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.

10I have carefully reviewed the applicant's Statement of Claim and this Application. I am satisfied that they are both based on the same facts and make similar allegations with respect to the events of October 2, 2009. While the Statement of Claim makes no explicit reference to the Code or a Code violation, it is clear that the October 2, 2009 incident is the core concern and the only incident of alleged abuse detailed in the Claim. Similarly, the October 2, 2009 incident is the key focus of the Application. Therefore, the essence of both actions is the alleged discriminatory comments made by the individual respondent to the applicant on October 2, 2009.

11In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, the Tribunal stated 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.

12The applicant expressly acknowledges that the impugned meeting, which is the crux of the Application, is also the subject of the civil claim. I am not persuaded by the applicant's argument that the single meeting of October 2, 2009 can be so cleanly parsed and the allegations of harassment so isolated that this avoids the application of section 34(11). In this case, it is clear that there is duplication with respect to the allegations, issues, evidence and request for relief.

13The Tribunal therefore has no jurisdiction over the Application. Accordingly, the Application is dismissed.