Hollie Mader v. Sears Canada Inc., 2011 HRTO 1158

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hollie Mader

Applicant

-and-

Sears Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 14, 2011

Indexed as: 2011 HRTO 1158

WRITTEN SUBMISSIONS

)

Hollie Mader, Applicant ) Daniel A. Lubin, Counsel

)

Sears Canada Inc., Respondent ) Robert Taylor, Counsel

1The applicant filed this Application on March 22, 2010, alleging discrimination in employment on the basis of disability and reprisal. Her Application deals with the period leading up to, and including, the termination of her employment with the respondent. Prior to filing the Application, the applicant filed a Statement of Claim against the respondent alleging wrongful dismissal (the “civil action”).

2This Interim Decision deals with a series of Requests for Order filed by the parties to respectively dismiss, defer and amend the Application. In order to understand the requests, it is helpful to set out the chronology of events subsequent to the filing of the Application.

3In its Response to the Application, the respondent requested that the Application be dismissed on the basis that it is barred under s. 34(11) of the Human Rights Code, R.S.O. 1990, H.19, as amended (the “Code”). That section prohibits a person from filing an application to this Tribunal where he/she has commenced a civil proceeding and is seeking an order for an alleged infringement of a right under the Code. The respondent alleges that there is substantial overlap in the factual and legal basis for the Application and the civil action.

4In support of its Request to dismiss, the respondent also relies upon the applicant’s use of a document which she obtained during the discovery process in the civil action as the foundation for her Application. The respondent states that this is in direct violation of the deemed undertaking rule set out in s. 30.1.01 of the Rules of Civil Procedure.

5In the alternative, the respondent submits that the Application should be deferred pending the outcome of the civil action.

6The Tribunal served the Response on the applicant and specifically invited her to make written submissions on the respondent’s Request to dismiss. In the Response to a Request for Order During Proceedings (Form 11) filed on her behalf, counsel for the applicant noted that she did not make submissions on deferral because she had not been invited to do so by the Tribunal.

7The Tribunal subsequently issued a Case Assessment Direction (“CAD”) directing the applicant to file written submissions on deferral. The applicant filed a second Form 11 in which she made submissions on the respondent’s Request to defer her Application pending the conclusion of the civil action.

8On the same day, the applicant filed a Request for Order During Proceedings (Form 10) in which she sought to amend her Application by removing her request for legal fees, and deleting paragraphs 10, 11 and 14 of Schedule “A” to her Application, which deal with the financial and psychological impact of the termination of her employment.

9The respondent filed what it purported was a Response to the Request for Order (Form 11) to amend, but which was, in fact, largely a further expansion of its argument that the applicant had violated the deemed undertaking rule.

Request to Amend

10The applicant seeks to amend her Application by removing certain paragraphs and removing her request for legal fees. The respondent has not argued that it is prejudiced by these amendments and, indeed, it would be difficult to see how it could argue prejudice in light of the fact that the applicant is seeking a lower remedy and the respondent is being asked to respond to fewer allegations.

11The Tribunal is prepared to accept the amended Application appended as Schedule “A” to the applicant’s March 14, 2011 Request for Order During Proceedings.

Request to Dismiss under Section 34(11)

12Section 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 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.

13Section 46.1 of the Code provides:

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.

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

14Section 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).

15The respondent argues that as part of its document disclosure obligations in the civil action under the Rules of Civil Procedure, it produced an email dated September 24, 2008 (the “email”). In her Application to this Tribunal, the applicant states that this email “forms the basis” for her Application. The respondent argues that this is a violation of the deemed undertaking rule (discussed above, and in greater detail below).

16However, it is not clear how that assists the respondent with respect to its argument that the applicant is seeking to vindicate her Code rights in the civil action and therefore that her Application is barred by s. 34(11) of the Code. That is, on the face of the respondent’s argument, at the time the applicant filed her civil action, she was not aware of the potential violation of her Code rights. Indeed, the Statement of Claim in the civil action makes no reference to the Code and/or discrimination.

17The respondent also argues that the subject matter of the civil action for wrongful dismissal and the Application are the same and that, essentially, they are duplicate proceedings. I accept the applicant’s argument, however, that there are different factual allegations, different legal theories and different relief sought. There may be some factual overlap between the two proceedings, but not to the level to operate as a bar to filing the Application with this Tribunal. Accordingly, the respondent’s request to dismiss the Application under s. 34(11) is denied.

Request to Defer

18The 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.

19Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

20Therefore, the initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same facts and human rights issues are being raised before another decision-maker with the authority to deal with those issues.

21This does not end the issue of whether the Tribunal should nonetheless defer to the civil process. Where concurrent legal proceedings do not clearly engage human rights issues, but raise facts or issues which overlap with those before the Tribunal, the Tribunal will consider whether to defer based on other 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.

22The Tribunal has deferred an application, for instance, where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution (Klein v. Toronto Zionist Council, 2008 HRTO 189). Even if the human rights issues will not be resolved by the civil action, if it is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.

23As discussed above, in this case, there appears to be some, but not significant, overlap between the facts raised by the civil action and those before the Tribunal. The two proceedings arise out of the termination of the applicant’s employment, but rely on different legal theories.

24The parties did not advise what stage the civil action is at, but it would appear that no hearing dates are pending. Requiring the applicant to await the outcome of her civil action could result in significant delay. Given that and the absence of significant overlap, this is not an appropriate case in which to exercise my discretion to defer. Accordingly, the respondent’s request to defer is denied.

Abuse of Process

25As pointed out by the respondent, the applicant explains in her Application that she is filing beyond the one-year limitation period set out in the Code because she was not aware that there was a possible infringement of her Code rights until she obtained a copy of the email in the course of the discovery process.

26It would appear that documents, such as the email disclosed by the respondent during the civil action discovery process, are subject to the deemed undertaking rule in the Rules of Civil Procedure, the relevant portion of which states:

30.1.01 (1) This Rule applies to,

(a) evidence obtained under,

(i) Rule 30 (documentary discovery),

(ii) Rule 31 (examination for discovery),

(iii) Rule 32 (inspection of property),

(iv) Rule 33 (medical examination),

(v) Rule 35 (examination for discovery by written questions); and

(b) information obtained from evidence referred to in clause (a).

(2) This Rule does not apply to evidence or information obtained otherwise than under the rules referred to in subrule (1).

Deemed Undertaking

(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.

Order that Undertaking does not Apply

(8) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just. [Emphasis added]

27With respect to Rule 30.1.01(8), it would appear that the applicant has not sought an order granting her relief from the deemed undertaking rule.

28As briefly alluded to in paragraph 25 of the respondent’s most recent submissions, there is an issue with respect to whether it is an abuse of this Tribunal’s process for a party to initiate an application before this Tribunal on the basis of information covered by the deemed undertaking rule, for which no order granting relief has been obtained.

29Prior to determining this issue, the Tribunal is seeking submissions from the parties, including whether the applicant is required to seek an order under Rule 30.1.01(8) before initiating and/or continuing with this Application. Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties the opportunity to make oral submissions.

30Accordingly, the Registrar will schedule a two-hour teleconference hearing to determine this issue, unless the parties waive their right to oral submissions, in which case the Tribunal will issue further direction concerning timelines for written submissions.

31Any case law relied upon by the parties shall be delivered to the other parties and filed with the Tribunal at least seven days before the scheduled hearing.

32I am not seized of this matter.