Robin Ellis v. Home Outfitters, 2010 HRTO 974

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robin Ellis

Applicant

-and-

Home Outfitters – A Division of Hudson’s Bay Company

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: May 4, 2010

Citation: 2010 HRTO 974

Indexed as: Ellis v. Home Outfitters

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 20, 2009, alleging discrimination in employment on the basis of disability. The respondent filed a Response, dated February 22, 2010, denying the allegations.

2In its Response, the respondent also requested that the Application be dismissed for lack of jurisdiction on the basis that a civil proceeding has been commenced in court addressing the same issues. Alternatively, the respondent requested that the Application be deferred pending the outcome of an investigation by an employment standards officer of the Ministry of Labour.

3On March 2, 2010, the respondent filed a Request for Order During Proceedings advising that the employment standards officer had reached a decision with respect to the applicant’s claim and requesting that the Application be dismissed pursuant to section 45.1 on the basis that the substance of the Application has been appropriately dealt with in another proceeding.

4The applicant was provided until April 6, 2010, to file submissions in response to the respondent’s request for early dismissal. No submissions were received. This Interim Decision addresses the respondent’s requests.

BARRED BY CIVIL CLAIM

5Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

6Section 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.

7In Beaver v. Dr. Hans Epp Dentistry Professional Corp., 2008 HRTO 282 at para. 10, the Tribunal explained the significance of section 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.

8The question for me to determine is whether the applicant decided to seek remedies for alleged breaches of the Code by way of a court action. The factual similarity between the two proceedings is not determinative of the question of the Tribunal’s jurisdiction to consider the matter.

9Having reviewed the Application and the Statement of Claim, which was attached to the Application, I find that the applicant has not triggered section 34(11) because she has not raised the Code in her civil action. 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 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 cases. 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.

10I therefore conclude that the Tribunal has the jurisdiction to consider the Application.

APPROPRIATELY DEALT WITH IN ANOTHER PROCEEDING

11The fact that the Tribunal has the jurisdiction to deal with an Application does not mean the Tribunal will always proceed to hear the Application. Section 45.1 of the Code 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.

12Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. Accordingly, the Registrar will schedule a half-day hearing to consider whether the Application should be dismissed under s. 45.1.

13In preparing for the preliminary hearing, the parties may wish to review section 45.1 of the Code, Rule 22 of the Tribunal’s Rules of Procedure, the Tribunal’s case law on those provisions (found at www.canlii.org) and the Tribunal’s Applicant’s Guide and Guide to Preparing for a Hearing before the HRTO available on the Tribunal’s website (www.hrto.ca) or from the Registrar’s office.

DEFERRAL

14Pursuant to Rule 14, the Tribunal may defer consideration of an application on such terms as it may determine, and on its own initiative. 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.

15In the circumstances of this case, it is appropriate for the Tribunal to consider, in addition to the section 45.1 issue, whether the Application should be deferred pending the outcome in the civil proceeding. The parties should prepare to make oral submissions on this issue at the half-day preliminary hearing.

ORDER

16The Tribunal makes the following order:

1. The respondent’s request for dismissal pursuant to section 34(11) is denied.

2. A half-day hearing shall be scheduled to hear submissions on (1) whether the Application should be dismissed pursuant to section 45.1; or alternatively, (2) whether the Application should be deferred pending the outcome of the civil proceeding.

3. If either party wishes to rely on written material not already filed with the Tribunal or any facts not contained in the Application or Response, the party should deliver such documents or information to the opposing party and file the same with the Tribunal no later than 14 days before the scheduled hearing.