Roy v. Wal-Mart Canada Corp., 2010 HRTO 64

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pinder Roy Applicant

-and-

Wal-Mart Canada Corp., John DiVirgilio and Debbie Stuckey-Hillier Respondents

interim DECISION

Adjudicator: Judith Hinchman Date: January 14, 2010 Citation: 2010 HRTO 64 Indexed as: Roy v. Wal-Mart Canada

written SUBMISSIONS BY

Pinder Roy, Applicant ) Jeff Hopkins, ) Counsel

Wal-Mart Canada Corp., ) Elisha Jamieson, John DiVirgilio and Debbie Stuckey-Hillier, ) Counsel Respondents )

INTRODUCTION

1This is an Application filed June 26, 2009 under section 53(5) 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 February 1, 2005 and abandoned upon filing this Application with the Tribunal.

2This Interim Decision addresses respondents' Request for an Order to dismiss the Application as not within the Tribunal's jurisdiction. The respondents take the position that upon the death of the applicant on December 19, 2005, the Tribunal lost jurisdiction to hear this Application. The applicant's counsel advises that the applicant's daughter Ms. Santiago will bring a Request for Order to continue this Application on behalf of the applicant.

3The second matter this Decision addresses is the application of s. 34(11) as a bar to the Application given the existence of an ongoing civil action commenced in small claims court on June 23, 2005 (the "Civil Action").

May the Estate bring an Application under the Code?

4The respondents raise a question of law similar to one presently under consideration in another Tribunal proceeding. See Crawford v. Toronto (City), 2009 HRTO 1823. Respondents and applicant's counsel have provided written submissions on this question. Given that the applicant is now deceased, however, there is an issue about the proper party to whom the respondents' Request for an Order should be directed. From the material before me, it is not clear that Ms. Santiago is now the individual authorized to act on behalf of the estate of the deceased, as the estate trustee or administrator. Although the applicant may have authorized her to act has her representative when she was alive, upon death, it is the estate that takes over the rights of a deceased.

5Therefore, the Tribunal directs Ms. Santiago to advise the Tribunal whether she acts for the estate of the applicant. If so, she must provide the Tribunal with documents confirming her status, such as a will appointing her as executor. She must provide the information requested by February 2, 2010. If Ms. Santiago is not the estate representative, she is directed to provide the Tribunal with the name and contact information of the estate representative by February 2, 2010.

6In view of the uncertainty about who is entitled to respond to the Request, the Tribunal will defer consideration of the respondents' Request for Order on this issue pending receipt of further information. Following receipt of that information the Tribunal will set any required schedule for further submissions. If the Tribunal does not receive further information following these directions, it may decide to treat this Application as abandoned.

Is the Application barred by Code Section 34(11)?

7Noting that a Statement of Claim for the Civil Action was attached to the Application, the Tribunal on its own motion raised the issue of whether or not the Application is barred by s. 34(11). An opportunity for submissions was provided.

8The Application alleges discrimination in employment on the basis of disability and reprisal. In particular, the applicant alleges several incidents in the workplace that represent harassment and discrimination based on those grounds. She also alleges that she complained to the corporate respondent who failed to effectively deal with her complaints and that the corporate respondent permitted a poisoned and hostile work environment to persist. Ultimately the applicant's employment was terminated on August 5, 2004.

9On February 1, 2005, the applicant commenced the Civil Action against the corporate respondent seeking general damages pleading that she was terminated without cause and thus denied her entitlement to a reasonable notice period of sixteen months.

10Section 34(11) of the Code provides, in part:

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.

11The applicant's counsel takes the position that because the Civil Action seeks only damages representing pay in lieu of notice, and does not allege any human rights violations or claim damages for any such human rights violations it is not barred by s. 34(11).

12The respondents' position is that the Civil Action is based on the exact same sequence of events that led to the Application. And that it is implied in the Statement of Claim that the harassment and differential treatment alleged was based on the applicant's claimed disability. Therefore, the relief under section 46.1 is implied and based on the same events upon which the Application is based.

13The Tribunal stated in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 that s. 34(11) is triggered when an applicant raises the Code in a court action, the facts and issues are the same as those in the Application, and the court is asked to find an infringement of Code rights and award damages based on that alleged infringement. The underlying purpose and rationale for this provision was stated in Beaver, supra as follows:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code.

14This Tribunal has found that s. 34(11) bars an application to the Tribunal, as a matter of jurisdiction, where there is an ongoing civil claim in the courts which seeks remedies for discrimination arising from the same events. See for example Reis v. CIBC Mortgages, 2009 HRTO 1350, Nogueira v. Catholic Children's Aid Society of Toronto, 2009 HRTO 802, and Free v. Magnetawen (Municipality), 2009 HRTO 1621.

15As in Free, supra, it is apparent that the Application and the Statement of Claim are based on the same chain of events. For example, in the Statement of Claim, by way of background leading to the alleged termination without cause, the applicant alleges that following a sick leave due to a serious pain in her foot she returned to work and was provided a stool so that she would not need to stand and that as a result she was harassed by her co-workers and further that the corporate respondent did not properly address her complaints. She does not, however, make a specific claim that her rights under the Code were infringed by this behaviour and does not seek a remedy for an alleged breach of the Code.

16The Tribunal has found s. 34(11) not to apply to bar applications due to ongoing small claims court actions for wrongful dismissal when the civil actions did not seek remedies for alleged breaches of the Code. See Baker v. Sears Canada, 2009 HRTO 1014 and Ivey v. Millard Refrigerated Services, 2009 HRTO 1065. In this case the applicant's Civil Action does not allege or seek remedies for breach of the Code.

17Nor do I find that the applicant's claim that she was terminated without cause with insufficient notice as articulated in her Statement of Claim is sufficiently broad to encompass a claim of a violation under the Code. See Farlow v. Hospital for Sick Children, 2009 HRTO 739 (in which the claim was broad enough). In her Statement of Claim, the applicant pleads only that she was terminated without cause and therefore the corporate respondent breached an implied term in her contract of employment to compensate her for a reasonable notice period.

18I find that s. 34(11) does not apply to bar the Application.

Should the Tribunal Defer consideration of this Application pending the conclusion of the Civil Action?

19I will consider the deferral issue after I have decided the outstanding jurisdictional question.

ORDER

20This Application is not barred by Code s. 34(11).

21Ms. Santiago shall file by February 2, 2010:

1. documents confirming her status, such as a will appointing her as executor, to demonstrate whether she acts for the estate of the applicant, and

2. in the alternative, If Ms. Santiago is not the estate representative, the name and contact information of the estate representative.

22The Tribunal will consider the respondents' Request for Order upon receiving and considering the information from Ms. Santiago and may require further submissions. If the Tribunal does not receive the information from Ms. Santiago as directed it may decide to treat this Application as abandoned.