Pollard v. 748161 Ontario, 2010 HRTO 1982

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Pollard

Applicant

-and-

748161 Ontario Inc., Peter Stam, Gerrit Bouman and Gerwin Bouman

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 28, 2010

Citation: 2010 HRTO 1982

Indexed as: Pollard v. 748161 Ontario

1This Interim Decision deals with an Application filed on July 21, 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 disability and age.

2Each of the respondents have filed a Response. In their Response, the corporate respondent and respondent Stam request dismissal of the Application under section 34(11) of the Code. Section 34(11) of the Code bars the Tribunal from proceeding with an application where a civil claim has been filed with a court requesting a remedy based on the alleged human rights violations.

3In a Notice dated August 26, 2010, the Tribunal directed the applicant to respond to the respondents' request to dismiss.

4The applicant filed a Reply and made submissions opposing the request to dismiss.

BACKGROUND

5The applicant alleges that, after working for the corporate respondent for approximately 25 years, he was dismissed from his employment because of his age and disability (diabetes, high blood pressure and high cholesterol). The applicant states that about five years prior to his dismissal he advised the respondent Stam, the owner of the company, that he was required to slow down because of his health. The applicant alleges that since that time his supervisor, Gerrit Bouman, and co-worker, Gerwin Bouman, subjected him to harassment because of his slower pace and criticized his work performance. The applicant indicates that he informed the respondent Stam of the harassment to no avail. The applicant asserts that he was the oldest non-managerial employee and that the corporate respondent was hiring younger employees. The applicant alleges that the respondent Stam informed him that he was being dismissed because he could not keep up with the physical demands of the job. The Application seeks a variety of remedies, including damages for lost wages, injury to dignity, self-respect and self-esteem, apology, reinstatement and the development of a policy regarding anti-discrimination/harassment and disability accommodation.

6The applicant's Statement of Claim alleges that the plaintiff's (applicant's) employment was wrongfully terminated without notice and that the plaintiff often worked overtime for which he was not properly paid. The Statement of Claim seeks wrongful dismissal damages of $100,000, unpaid overtime wages of $3,000 and punitive damages in the amount of $25,000. The Statement of Claim seeks punitive damages for the "callous, harsh, high handed conduct" of the defendant, in particular with respect to harassment and criticism.

7The respondents deny the allegations of discrimination. The respondents indicate that what the applicant perceived to be harassment was in fact directions and instructions with respect to correcting his performance deficiencies. The respondents claim that, when informed of his dismissal, it was the applicant who stated that slowing down was better for his health. In its Statement of Defence, the corporate respondent alleges that the applicant chose to work as a seasonal employee in order to receive employment insurance benefits for part of the year. The corporate respondent asserts the applicant is not owed any overtime wages because it is an exempted employer under employment standards law.

DECISION

8Section 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.

9Section 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.

10Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. Tribunal jurisprudence has held that, for the purpose of section 34(11), a civil claim need not specifically plead a Code violation or Code remedy for the section to apply. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282. In Smith v. Sears Canada, 2010 HRTO 1834, the Tribunal explained the analysis to be considered for section 34(11) as follows:

The 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 section34(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.

11I find that the Tribunal does have jurisdiction over this matter. Although both civil claim and Application arise from the same circumstances, the Application raises the protected grounds of disability and age and identifies the individual respondents and their alleged harassment as independent wrongdoing under the Code. It appears that the purpose of the civil suit is to seek damages for termination without adequate notice and unpaid overtime pursuant to employment standards legislation. While the history of employment is the same in the Application and civil suit, it is not clear that there is a significant overlap with respect to the legal issues with respect to age and disability discrimination and request for relief.

12The request for early dismissal pursuant to section 34(11) is refused. The corporate respondent and the respondent Stam are directed within 21 days of the date of this Interim Decision to file a full Response with the Tribunal and to advise whether or not they are willing to participate in mediation. All other parties have indicated they are amenable to participating in mediation.

13I am not seized.