Cote v. Bruce Edmeades, 2010 HRTO 1803

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dennis Cote

Applicant

-and-

Bruce Edmeades Co. (now Martin-Brower of Canada Co.), Jaye Jackson, Janet Lehman, Sarah Brestovacki and Steve Little

Respondents

DECISION

Adjudicator: Maureen Doyle Date: September 1, 2010 Citation: 2010 HRTO 1803 Indexed as: Cote v. Bruce Edmeades

APPEARANCES BY

Dennis Cote, Applicant ) Self-represented

Bruce Edmeades Co. (now Martin-Brower ) of Canada Co.), Jaye Jackson, Janet Lehman, ) Kristin Taylor, Counsel Sarah Brestovacki and Steve Little, ) Respondents )

1This Decision addresses whether this Application is barred by section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The parties made submissions on this question at a hearing before the Tribunal.

2The Application was filed on January 30, 2009 pursuant to s. 53(5) of the Code. The original complaint was filed with the Ontario Human Rights Commission on August 23, 2007 and abandoned upon filing the present Application. It alleges that the respondents discriminated against the applicant in employment on the basis of disability contrary to the Code.

3On October 10, 2008, the applicant issued a Notice of Action and on November 6, 2008, he filed a Statement of Claim in the Ontario Superior Court of Justice against the corporate respondent and others. In the Statement of Claim the applicant pleads that he is entitled to coverage as a beneficiary for life and/or accidental death coverage provided under a policy of insurance and that at all material times he was an employee of the corporate respondent, Bruce Edmeades Co., or alternatively, Bruce Edmeades Sales Ltd. He claims insurance benefits were denied to him, and he claims benefits as beneficiary of all coverage available for his spouse for life and accidental death insurance. In the alternative, he claims against his former employer and its successors "in negligence and contract".

4The Statement of Claim also indicates at paragraph 14:

The Plaintiff further states that he was injured while on the job on or about April 11, 2007. The Plaintiff was ultimately terminated as he was unable to recover sufficiently to meet his prior job duties and demands. The Defendant Employer was unwilling to make any, or any reasonable attempts to accommodate the Plaintiff's injuries arising from the accident when he attempted to return to his employment, and instead, terminated his employment wrongfully and without just cause.

The remedies sought in the Statement of Claim include a declaration that the applicant is entitled to coverage as a beneficiary of a life insurance policy, an order for payment of such benefits, punitive, exemplary or aggravated damages for the bad faith conduct of the Defendants, interest, costs of the action and "[d]amages in the amount of $500,000.00, or such further or other amount as this Honourable Court deems just".

Statutory Provisions

5Section 34(11) of the Code provides:

A person who believes that one of his or her rights under Part l has been infringed may not make an application under subsection (1) with respect to

(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.

6Section 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 L 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 l.

Submissions of the Parties

7The respondents submit that the Tribunal should not consider the Application, as jurisdiction is lost by virtue of the operation of s. 34(11) of the Code and request that the Application be dismissed on that basis. The respondents submit that the civil action had been commenced when the Application was filed and the Statement of Claim alleges failure to accommodate due to a disability, as well as dismissal. They submit that these are the same allegations that the applicant seeks to put before the Tribunal in this Application. Further, they submit that the $500,000.00 damages sought in the Statement of Claim relate to the allegations in paragraph 14 of the Statement of Claim. They also submit in the alternative that the individual respondents should be removed as respondents to this Application.

8The applicant submits that the Statement of Claim deals with his claim for death benefits in relation to his wife's insurance policy, but that the Application relates to the treatment he received upon his return to work. He submits that the allegations of discrimination upon his return to work and the discipline resulting in his termination are before the Tribunal, but are not before the court. In particular, he submits that a suspension relating to a work refusal on August 14, 2007 is before the Tribunal, as is a suspension for refusal to work on August 24, 25 and 26, 2007, and a subsequent incident involving profane language on August 30, 2007. He also submits that the original complaint was filed before the Statement of Claim. He submits that therefore his Application is not barred by section 34(11).

Analysis

9The fact that section 46.1 of the Code has not been specifically pleaded in a statement of claim does not preclude a finding that an application falls within the scope of section 34(11). In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the following principles applicable to the interpretation of s. 34(11):

10. 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 on the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or whether 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.

11. 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.

10The applicant has submitted that the original complaint, dated August 23, 2007, was filed before the Statement of Claim and he seeks to have the Application proceed on that basis. The Tribunal has made clear that section 34(11) applies to bar an application from proceeding where a civil action has been commenced both before and after an application under the Code has been filed: Borden v. Toronto Grace Health Centre, 2010 HRTO 1109.

11While the applicant has included several individual respondents in his Application, but not in his Statement of Claim, I am satisfied that this does not have any impact on the applicability of s. 34(11). This issue was addressed by the Tribunal in Hallett v. Grey Bruce Health Services, 2009 HRTO 403, at paragraph 16 in which it concluded that the existence of different parties does not affect the application or interpretation of section 34(11):

Having found that the provisions of s. 34(11) apply in these circumstances, the question arises whether it makes any difference that there are two personal respondents to the GBHS Application, Campbell and Greaves, who are not named as defendants in the civil action. In my view, this does not make a difference. Section 34(11) states that a person may not file an application with respect to a right that she believes has been infringed if the person is seeking an order in a civil action "with respect to the alleged infringement". I have found that the GBHS Application alleges an infringement of the applicant's rights under the Code on essentially the same basis on which she is seeking a remedy in the civil action. As a result, any application that the applicant attempted to file against any respondents in respect of the alleged violation of this same right would be barred, whether or not the respondents were also named as defendants in the civil action.

12The applicant has made allegations in his Statement of Claim regarding a failure to accommodate his disability and dismissal from employment. The respondents' actions toward the applicant on August 14 and 15 2007 and the failure to provide reasonable accommodation of his disability are issues before the Tribunal and are also raised in his civil action. While it is not clear to me that the applicant's September 5, 2007 dismissal is properly before the Tribunal, it is clear that the applicant has put this issue before the court in his Statement of Claim. Therefore, even if the applicant considers the issue of his dismissal to be before the Tribunal, it is before the court.

13While the Statement of Claim also puts questions of insurance coverage before the court, I am satisfied that the court action raises the same facts and issues as those raised in the Application before the Tribunal, and seeks a remedy from the court for these same actions. In this case, it is clear that the evidence and request for relief would be duplicative with respect to the allegations of discrimination on the basis of disability in both the civil court proceedings and the Application. This type of duplication of proceedings is exactly what section 34(11) was intended to prevent. Accordingly, the Application is barred pursuant to s. 34(11) of the Code, and is therefore dismissed.

14Given my finding regarding the applicability of s. 34(11), I do not need to address the respondents' request to remove the personal respondents.

DECISION

15The Application is dismissed.