HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dulce Acosta
Applicant
-and-
Far Horizons Inc., Evan Frank and Mark Schwartz
Respondents
interiM DECISION
Adjudicator: Alison Renton
Indexed as: Acosta v. Far Horizons
1The purpose of this Interim Decision is to address the respondents’ request for an early dismissal of the Application on the basis that it is barred by subsection 34(11) of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), and/or section 45.1 and to seek submissions on deferral of the Application pending completion of civil proceedings.
2The applicant filed an Application under s. 34 of the Code on July 28, 2009 alleging discrimination in employment on the basis of race, colour, place of origin, ethnic origin and sex. The applicant submitted that she was terminated from her employment on January 8, 2009. She provided a chronicle of events from her employment in which she alleges that discrimination towards herself and others took place.
3The respondents filed a Response on October 7, 2009, which requests an early dismissal of the Application on the basis that a claim based on the same facts has been filed in civil court and because another proceeding has in whole or in part appropriately dealt with the substance of the Application. The respondents attached a Statement of Claim for wrongful dismissal that the applicant filed with the Small Claims Court of the Superior Court of Justice on May 1, 2009 (the “Claim”) against the corporate respondent. The respondents indicated that a Statement of Defence has been filed, that the Claim has proceeded through the settlement conference stage and the applicant has to set the matter down for trial.
4On October 29, 2009, the Tribunal sent a letter to the applicant enclosing the Response and identifying the request for early dismissal based on section 34(11). The applicant was invited to file a Reply to the Response. The applicant filed a Reply in which she submits that the Small Claims Court action does not make allegations of, or claim relief for, discrimination under the Code.
SECTION 34(11)
5Section 34(11) of the Code provides:
A person who believes that one of his or her rights under Park 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 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 finally settled.
6Section 46.1 of the Code provides:
(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:
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.
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.
7Section 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: see Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10.
8On the basis of the information before me, I am not able to conclude that section 34(11) is engaged in this Application. While the Claim arises from her termination, the essence of the Application is to raise allegedly discriminatory comments made to the applicant and others during the course of her employment and to seek monetary compensation of for a violation of the Code. Similarity in the facts does not amount to duplication of legal issues. The determinative factor in this decision is that the Claim makes no mention of the Code or of any allegations of discrimination. Duplication of legal proceedings arising out of the same facts where the Code is not referenced is not a basis for declining jurisdiction over an Application; see Baker v. Sears Canada, 2009 HRTO 1014 at para. 12:
The fact that the case could potentially have been commenced as a single court action alleging both wrongful dismissal and discrimination is a matter of personal choice the legislature has left up to individuals bringing such case. It is not within the Tribunal’s jurisdiction or mandate to instruct parties where to bring their cases. The Tribunal’s function is to determine whether it has the jurisdiction to accept the Application as filed. In this case, I find the Tribunal does have jurisdiction over the matter.
9For these reasons, the respondents’ request for an early dismissal of the Application on the basis that it is barred by subsection 34(11) of the Code because the Claim was filed is dismissed.
SECTION 45.1
10Section 45.1 provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
11As the Claim is still active, I find that the proceeding is not concluded. Therefore I do not need to determine whether another proceeding has appropriately dealt with the substance of the Application.
DEFERRAL
12I find it appropriate to seek the parties’ written submissions on whether the Application should be deferred pending the completion of the civil litigation.
13The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
14The initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same human rights issues are being raised before another decision-maker with the authority to deal with those issues. When human rights issues are not clearly engaged in the other proceeding, but the application raises facts or issues which overlap with those in another concurrent proceeding, the Tribunal may nonetheless defer determination of the application. In making this determination the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it: see Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 966.
15The Tribunal therefore directs the parties to provide their written submissions on whether this Application should be deferred pending the completion of the civil litigation. The parties are to deliver to the other party and file their submissions with the Tribunal within 15 days of the date of this Interim Decision.
16I am not seized of this matter.
Dated at Toronto, this 23rd day of February, 2010.
“Signed By”
Alison Renton
Vice-chair