Stanley Galler v. Ecom Food Industries Corporation and David Soknacki, 2010 HRTO 326

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stanley Galler

Applicant

-and-

Ecom Food Industries Corporation and David Soknacki

Respondents

case Resolution Conference DECISION

Adjudicator: Dale Hewat

Date: February 11, 2010

Citation: 2010 HRTO 326

Indexed as: Galler v. Ecom Food Industries

AppearanceS BY

Stanley Galler, Applicant ) Constance Olsheski,

) Counsel

Ecom Food Industries Corporation and ) David Delagran,

David Soknacki, Respondents ) Counsel )

1This is an Application filed October 27, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on March 27, 2007 and abandoned upon filing this Application with the Tribunal. The applicant alleges he was terminated from his employment with the corporate respondent on the basis of disability and age contrary to section 5, Part 1 of the Code.

2The Case Resolution Conference was conducted on October 15, 2009. At the beginning of the hearing, I confirmed with the parties that a civil court proceeding has been commenced with respect to the applicant’s termination of employment and that the parties are in the advanced stages of proceedings. Based on my review of the civil action pleadings, I raised the issue of whether the Application was in fact barred on the basis of section 34(11) of the Code. After hearing general submissions from the parties, I adjourned the hearing and requested them to provide written submissions on the section 34(11) issue or, if the Application was not barred, whether it should be deferred pending the resolution of the civil action. This Decision deals with both issues of whether the Application should be dismissed or deferred.

3Section 34(11) of the Code states:

(11) A person who believes that one of his or her rights under Part 1 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

4Section 46.1 explicitly gives the 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.

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

Background

5The applicant’s statement of claim, dated July 23, 2007, is an action for wrongful termination brought against the corporate respondent seeking damages, including “Wallace” damages in the amount of $40,000, as a result of the defendant’s breach of its duty of good faith and fair dealing, and for the bad faith manner of its termination of the plaintiff.

6The statement of claim pleads that the minimum standards of employment including the Code were terms of his employment. Paragraphs 9 – 13 of the statement of claim state that the plaintiff suffered medical issues which necessitated time off work and that plaintiff was advised by his physician that he should only return to a work environment that accommodated his needs. The pleadings allege that the plaintiff sought accommodation but was advised that he could not be accommodated. In addition to the wrongful dismissal allegations the pleadings note that the termination was a violation under the Code and that the defendants breached their duty of good faith and fair dealing by terminating the plaintiff while he was vulnerable and failing to accommodate his disability without undue hardship.

Submissions

7The applicant submits that the words “may not” in section 34(11) imply that the decision to bar an application is discretionary and that the following considerations should be taken into account when applying the discretion: (A) whether the central issues are the same in both proceedings, (B) where there are different parties in the two proceedings and (C) whether the pleadings in the civil court action can be amended to remove references to the Code or any “offending language” in order to avoid duplicative proceedings or to establish that the allegations that involve the personal respondent are withdrawn from the civil court action. The applicant asserts that section 41 of the Code requires that the Tribunal’s Rules are to be liberally construed and that allowing an amendment to the civil court pleadings would ensure a fair, just and expeditious resolution of the merits of the Application.

8Alternatively, it is also submitted that section 46.1 of the Code should be liberally interpreted by the Tribunal to provide the applicant with the opportunity to pursue either the Application or the civil court proceedings by allowing a deferral of this Application until the applicant amends the civil court pleadings and satisfies the Tribunal that the civil action does not make any reference to the discriminatory practices of the employer.

9Finally the applicant argues that the references to the Code in the civil proceeding were done before the changes were made to the Code and that the applicant should not be penalized and/or prejudiced because of a technical breach which can be overcome by an amendment to the civil court pleadings. The applicant seeks a two week period of time to amend the pleadings before the Tribunal makes a final determination of either barring or deferring the Application.

10The applicant asserts that the central issue in this Application is that of discrimination and failure to accommodate and that the applicant was terminated because of his disability and unwillingness to provide accommodation in the last three weeks of his employment. In contrast, it is argued that the central issue in the civil action is was there cause for dismissal that would include an examination of the applicant’s full eight years of employment and notes that references to discrimination were made in order to characterize the conduct of the corporate respondent. The applicant also takes the position that the Application is against the individual respondent Mr. Soknacki who was not named as a defendant in the civil action. By barring the Application under section 34(11), the applicant believes he would be denied any recourse against the individual respondent for his alleged discriminatory actions.

11The respondents maintain that the Application fits squarely within the provisions of section 34(11) because it is alleging an infringement of a right under section 5 of Part 1 of the Code to be free from discrimination in the workplace on the basis of age and disability and the freestanding right to accommodation under section 24(2) of the Code. The respondents argues that the words “may not” do not confer a discretion on the Tribunal but rather indicate that if the applicant comes within the ambit of section 34(11), the Tribunal is required to bar the Application.

12In addition, the respondents note that the applicant has specifically pleaded and relied upon the Code in support of his claim for Wallace and punitive damages. Although section 46.1 of the Code is not specifically raised in the civil action, the respondents assert that the absence of a specific pleading of the section is not determinative relying on Beaver v. Dr. Hanns Epp Dentistry Professional Corporation, 2008 HRTO 282. The respondents maintain that section 34(11) of the Code is intended to eliminate duplicate court and Tribunal proceedings and disputes the assertion that the central issue in both proceedings are different. Effectively, the respondents argue that both the court and the Tribunal need to make a determination of why the applicant was terminated which may include a finding of discrimination under the Code or otherwise.

13With respect to the applicant’s position that there are different parties in the two proceedings, the respondents comments that the claims against the corporate respondent and the individual respondent are the same and that the corporation is being sued because of the Mr. Soknacki’s conduct in his capacity as an officer, director and manager of the corporate respondent. Therefore, the respondents submit that there is no allegation of a separate independent wrongdoing committed by Mr. Soknacki nor any allegation that he engaged in any conduct for which the corporate respondent is not responsible in law. Accordingly, to permit the Application to be bifurcated and to proceed against the individual respondent would defeat the purpose of section 34(11) with the possibility of inconsistent results on based on the same set of facts.

14Finally, the respondents submit that to allow the applicant to amend his pleadings by withdrawing duplicative allegations is not a proper interpretation of section 34(11) because reference is made in that section to “the proceeding” not being finally determined or withdrawn, not just a section of the proceeding.

15In the alternative, the respondents request that the Application be deferred pending the outcome of the civil proceedings pursuant to section 45 of the Code based on the rationale expressed in Baghdasserians v. 67499 Ontario Ltd., 2008 HRTO 404 that the purpose of deferral is to ensure that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent results. In addition, given the advanced stage of the civil proceeding the respondents note that a deferral makes sense in order to maintain the judicial goals of just, fair and expeditious proceedings.

Analysis

16The language in section 34(11) does not confer discretion on the Tribunal if the Application falls within the circumstances described in section 34(11). I agree with the respondents’ argument that the words “may not” in section 34(11) apply to the actions of an applicant who attempts to concurrently pursue a claim of discrimination under the Code and in a civil action. In 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.

17In this Application it is clear that the applicant believes that his rights under Part 1 of the Code have been infringed and he has commenced a civil proceeding that seeks remedies not only for wrongful termination but also specifically with respect to the alleged Code infringements. The question is not whether the central issues are the same in the two proceedings but whether an allegation of an infringement of a right under the Code is raised in the civil proceeding based on the same set of facts. In the instant case, not only does the statement of claim assert the applicant’s rights and alleged infringement of such rights under the Code, it also specifically requests the court to provide, as part of remedial relief, damages for infringement of the Code.

18The 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 (supra), the Tribunal discussed the following principles applicable to the interpretation of s. 34(11):

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.

19In 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 age and disability in both the civil court proceedings and the Tribunal Application. This type of duplication of proceedings is exactly what section 34(11) was intended to prevent.

20I also am not persuaded with the applicant’s position that the Application should proceed on the basis that there are different parties in the two proceedings, namely that the personal respondent is not a defendant in the court action. The language in section 34(11) states that a person who believes that one of his or her rights under Part 1 of the Code has been infringed may not make an application with respect to that right (emphasis added). The focus of section 34(11) therefore is on the “right” that has been infringed not on which party infringed the right. The Tribunal has addressed this issue in Hallett v. Grey Bruce Health Services, 2009 HRTO 403 (Can LII), 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.

21In this Application the allegations regarding the infringement of the rights to be free from discrimination on the basis of age and disability are raised in both proceedings based on the same set of facts. There is no allegation of a different wrongdoing or infringement of another “right” by the personal respondent distinct from the corporate respondent. To allow a bifurcation of the Application to permit it to proceed against the personal respondent would defeat the purpose of section 34(11).

22Finally, I do not agree that it would be proper for the Tribunal to defer this Application either until after the completion of the civil action or to allow the applicant to now amend his pleadings in the civil action in order to remove all references to the Code and any requests for remedial relief. This case differs considerably from the Tribunal’s decision in Baghdasserians, supra, in which it was determined that section 34(11) did not apply because the civil action was strictly a claim for wrongful or constructive dismissal that did not contain a claim that the applicant’s rights under the Code or a request for remedial relief for an alleged breach of the Code. In addition, in Baghdasserians, at paragraphs 21-22, the Tribunal did not defer the Application partly because it was not the case where an applicant had engaged another process to consider and determine human rights issues and because it was unclear how close to a conclusion was the civil action. In the instant Application, the civil action is at an advanced stage and the Applicant has asked the court to consider whether a Code violation occurred and sought remedies for the alleged infringement of his rights. It is too late in the process now for the applicant to suggest that all of the references to the Code and allegations of infringement contained in the statement of claim were a technical error that should be allowed to be corrected through an amendment to the pleadings.

23In the result, I find that the Application is barred by section 34(11) of the Code. The Application is therefore dismissed.