Florence Asamoah v. Gracious Living Corporation, 2011 HRTO 1170

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florence Asamoah

Applicant

-and-

Gracious Living Corporation

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 15, 2011

Citation: 2011 HRTO 1170

Indexed as: Asamoah v. Gracious Living Corporation

1The purpose of this Interim Decision is to address the respondent’s 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”).

2The applicant filed this Application on January 28, 2010 alleging discrimination in employment on the basis of disability and family status concerning the respondent’s alleged failure to accommodate her disability and family status while she was employed and its subsequent termination of her employment on February 4, 2009. On February 3, 2011, the applicant filed a wrongful dismissal Statement of Claim.

3Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

4Section 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:

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.

5Section 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).

6The respondent argues that the Statement of Claim “makes a number of claims that are based largely on the same facts as are set out in the Application.” However, a comparison of the Application and the Statement of Claim show that the allegations are widely divergent. The Statement of Claim does not allege anything with respect to the period the applicant was employed. It does not mention the respondent’s alleged failure to accommodate her trip to Ghana to deal with her mother’s death, and it only briefly alludes to her medical condition. Moreover, in her Statement of Claim, the applicant does not allege a breach of the Code, nor does she seek Code remedies.

7On the basis of the differences in the two proceedings, I conclude that this Application is not barred by operation of subsection 34(11). Accordingly, the respondent’s request for dismissal on this basis is denied.

8I am not seized of this matter.