HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Smith

Applicant

-and-

Sears Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: September 8, 2010

Citation: 2010 HRTO 1834

Indexed as: Smith v. Sears Canada

WRITTEN SUBMISSIONS BY

Patricia Smith, Applicant ) Self-represented

Sears Canada Inc., Respondent ) Robert Taylor, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to address the respondent’s request that the Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on July 15, 2010, be dismissed for lack of jurisdiction or, alternatively, that it be deferred. The respondent requests a dismissal pursuant to section 34(11) of the Code, 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. The applicant opposes the request to dismiss, and consents to the deferral of the Application pending the outcome in the civil proceeding.

2For the reasons set out below, the respondent’s request for early dismissal is denied.

BACKGROUND TO THE APPLICATION

3The Application alleges discrimination on the basis of sex in employment. In particular, the applicant alleges that the respondent maintained sex-differentiated staffing levels and sales assignments. She frames this alleged discrimination as being of a systemic nature.

4The Response, filed on August 19, 2010, asks for early dismissal pursuant to section 34(11) on the basis that the applicant filed a Statement of Claim (the “Claim”) in alleging that she had been wrongfully dismissed. The respondent filed a copy of the Claim, which was issued by the Court on May 11, 2010. The respondent submits that the Claim seeks financial compensation for lost income and makes claims about gender-based distinctions in the workplace. It submits that both proceedings focus on the same facts and seek similar relief.

5The applicant argues that the Application does not duplicate the civil proceeding. She states that she is not seeking damages related to discrimination in the civil claim, which is restricted to wrongful dismissal. While both cases relate to her employment with the respondent, she argues they engage different legal analyses. She argues that any overlap is relevant only to the issue of wage loss damages, which she states is only a part of the remedies sought.

ANALYSIS AND DECISION

6The respondent submits that the purpose of section 34(11) is to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code, and that applicants are required to make a choice of forum when bringing claims that their rights under the Code have been violated. In support of this correct proposition, it relies on the Tribunal’s decision in McMuldroch v. Honda of Canada Manufacturing, 2009 HRTO 2008.

7In that case, the Tribunal held that even though the Code was not specifically pleaded in the Statement of Claim, a Code claim could be inferred based on the substance of the allegations, which included identical claims of harassment and discrimination.

8The determinative question remains whether the applicant did, whether explicitly or implicitly, raise the Code and seek remedies for alleged breaches by way of the civil proceeding. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section 34(11). If not, however, then the factual similarity between the two proceedings is not sufficient to dislodge the Tribunal’s jurisdiction over a matter that is otherwise properly brought before it.

9Having reviewed the Application and the Statement of Claim, I find that the applicant has not triggered section 34(11). While it is true that both the Claim and the Application arise from the same sequence of events and present related issues, similarity or overlap in the facts does not amount to duplication of legal issues: Baker v. Sears Canada, 2009 HRTO 1014 at para. 9. In the Claim, the applicant does not mention the Code, refrains from alleging discrimination and seeks distinct remedies. I cannot infer on the material before me that the applicant has in fact raised the Code in her civil claim.

10The applicant’s allegations of discrimination also raise issues of a systemic nature. I cannot infer from the Statement of Claim that such issues are raised or will be addressed in the civil action.

11I therefore find that the Tribunal does have jurisdiction over this matter.

DEFERRAL

12Both parties agree to deferral. I find that deferral is appropriate in the circumstances.

ORDER

13The Tribunal orders as follows:

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

II The request for deferral is granted. The parties are directed 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.