Visic v. University of Windsor, 2010 HRTO 2196

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anica Visic

Applicant

-and-

University of Windsor

Respondent

decision

Adjudicator: Ailsa Jane Wiggins

Date: November 4, 2010

Citation: 2010 HRTO 2196

Indexed as: Visic v. University of Windsor

AppearanceS BY

Anica Visic, Applicant ) Self-represented

University of Windsor, Respondent ) Marilee Marcotte, ) Counsel )

Introduction

1This Decision addresses whether the Tribunal has jurisdiction over this Application as the applicant is the plaintiff in an ongoing civil proceeding against the respondent and others.

Background

2The applicant failed her first year of law school, 1999/2000. She had a disability and was allowed to re-enrol on medical grounds. She successfully completed her LLB degree.

3The applicant alleges that the respondent discriminated against her on the basis of disability by displaying her law school marks for the academic year 1999/2000 on her transcript, thereby requiring her to disclose a past disability.

4The respondent’s policy requires that transcripts show all years attended. The applicant maintains that the policy is discriminatory and that she continues to be adversely affected by the policy each time she needs to provide her transcript to a prospective employer.

5The applicant filed a human rights complaint on April 7, 2005 but the Human Rights Commission declined to deal with the complaint because it was out of time. The applicant was unsuccessful on judicial review and her application for leave to appeal to the Court of Appeal was denied.

6This Application was filed on December 29, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on June 26, 2008 and abandoned upon filing this Application with the Tribunal.

7In 2005, long before filing her Complaint, the applicant commenced a civil action against the respondent and others. The applicant filed an “Amended Amended Statement of Claim” in January 2006 and an Amended Statement of Defence was filed by the defendants shortly thereafter.

8The civil action refers to an alleged infringement of the Code and the remedy sought is similar to those described under section 46.1 of the Code. The applicant asks for, amongst other things, an injunction restraining the defendants from displaying her marks for the 1999/2000 academic year on her transcript.

9The respondent filed its Response to the Application on February 2, 2009. The respondent requested that the Tribunal dismiss the Application because it was filed outside of the limitation period and the applicant had commenced a civil action for identical relief.

10The parties agreed to mediation but no settlement was reached so the Tribunal requested submissions on the jurisdictional issue and a preliminary hearing was held in Windsor on April 20, 2010. The applicant participated by phone.

Statutory Provisions

11Section 34(1) of the Code provides:

If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

12Section 34(11) reads as follows:

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.

13Section 34(11) is to be read in tandem with section 46.1, which explicitly gives civil courts the authority to order remedies for human rights infringements.

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.

Submissions of the Parties

14At the hearing the respondent took the position that the Application was statute barred by virtue of section 34(11) and that, in the alternative, in the event that I did not find it to be barred by section 34(11), that the Application was filed outside of the one year limitation period in section 34(1).

15Counsel for the respondent referred me to several cases in support of the respondent’s position on section 34(11) but indicated that the case most on point was Kupiec v. Starburst Coin Machines Inc., 2009 HRTO 75.

16In Kupiec, the applicant filed a human rights complaint alleging discrimination in employment on the basis of age and about two months later began a civil action for wrongful dismissal and also claiming damages for breach of the Code. Pursuant to the transition provisions of the Code the complaint was abandoned and an application filed with the Tribunal. The respondents requested that the application be dismissed because of section 34(11). The civil action and the application covered the same subject matter but the remedies differed somewhat. The applicant said that if the Tribunal agreed with the respondents that section 34(11) applied, he would undertake to withdraw any portions of his civil action that offended the section so that his applicant could proceed. The respondents replied that the Code provisions do not allow a withdrawal of a court action after an application has been made to the Tribunal, and that as long as the civil action is still proceeding the Tribunal action is barred. The Tribunal considered the recent revisions to the Code and stated:

…once a person claiming infringement has commenced a civil action claiming damages for the alleged human rights violation, that person has made a choice and section 34(11) of the Code is clear in stating that the person cannot then proceed with a complaint to this Tribunal unless he or she has first withdrawn the civil action. The legislation does not contemplate withdrawal of a portion of a civil action only after the responding party objects, as is the case here. On the contrary, it compels the applicant to make a decision on where to seek redress for alleged human rights violations before filing an application with the Tribunal. In the circumstances here, as long as the civil action was not withdrawn or amended prior to making the application, the application to the Tribunal will be barred.

17In this case the civil action was filed before the revisions to the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, a wrongful dismissal action was filed before the application and before section 46.1 came into force. The Tribunal decided that the applicant was precluded from bringing an application by virtue of section 34(11) of the Code.

18The applicant did not attempt to amend her civil action to remove any parts of it which dealt with human rights or to withdraw her civil action until January 2, 2010.

19The applicant indicated that she had booked a motion to withdraw her civil action and she argued that, in the circumstances of this Application, the Tribunal should consider the operative time under section 34(11) to be the commencement of the hearing on the merits, rather than the date on which she filed her Application. She asked for a reasonable period to withdraw her civil proceedings.

20The applicant asked that I not follow Kupiec. She said that it is unreasonable and illogical to interpret section 34(11) of the Code to require someone to withdraw his or her civil action before he or she knows if the Tribunal will accept an application for filing or will hear the case on the merits. She describes the Tribunal’s interpretation of section 34(11) in Kupiec as contrary to the purpose and contextual approach to interpreting human rights legislation endorsed by the Supreme Court of Canada.

21The applicant asks that I rely instead on Guilmoutdinov and the Ontario Human Rights Commission v. Ontario College of Teachers, 2009 HRTO 1843. In that case the applicants filed complaints with the Commission in 2004, filed a civil action in 2005 and their complaints were referred to the Tribunal by the Commission in 2008. The complainants argued that section 34(11) did not apply because it was not the applicants but the Commission that initiated the proceedings. The Tribunal concluded that section 34(11) operated to “bar Commission-referred complaints, where the hearing on the merits has not yet commenced, and where the complainants have initiated a civil action in which an order for human rights remedies is sought”. The Tribunal said at paragraph 43:

…taking into account the legislative purpose of section 34(11)(a) of the Code [to avoid dual proceedings with their intendant risk of inconsistent outcomes and waste of public and private resources], it makes the most sense to use the commencement of the hearing on the merits of the case as the point in time at which the assessment is to be made of the ability of the complainants to pursue their human rights claims before both the Tribunal and the courts. As a practical matter, it is only once a hearing on the merits has commenced that a “right” or “privilege” to have the matter determined by the Tribunal while the same claim is proceeding in the courts comes into existence within the meaning of s. 51(1) (b) of the Legislation Act. In this case, as of September 1, 2009, the law as expressed in section 34(11)(a) of the new Code prohibited the complainants from pursuing their human rights claims before the Tribunal given that they had previously commenced a civil action in which those claims were being pursued.

DECISION

22The basis and the essential factual content of both the applicant’s civil action and Application are the respondent’s decision to display her 1999/2000 law school grades on her official transcript. The central issue in dispute in the civil action is identical to the central issue in the Application.

23There may be some variety in the remedy requested in the civil action but that was also the case in Kupiec.

24In my view the relevant time is the point at which the Application is filed. I prefer the reasoning in Kupiec and the respondent’s argument that holding the relevant time to be the commencement of the hearing on the merits would not satisfy the legislative intent, i.e., to avoid a duplication of proceedings. The fact that the applicant is attempting to withdraw her civil action is irrelevant. Her Application is barred by section 34(11).

25I also find that the Application is out of time. The applicant was aware that her 1999/2000 marks were being displayed on her official transcript more than a year in advance of filing her Complaint. Her argument that it was a continuing violation and that she was discriminated against each time she provided a prospective employer with a transcript was unsuccessful in her first human rights complaint. In Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON S.C.D.C.), the Divisional Court held that her allegations were not those of a continuing violation of the Code, but rather of continuing effects or consequences of the respondent’s policy. I agree. Ordering another transcript does not result in a new act of alleged discrimination.

26For these reasons, I find that the applicant may not continue to make this Application. It is outside the Tribunal’s jurisdiction.

27The Application is therefore dismissed.