HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra Gordon
Applicant
-and-
Whitby Oshawa Imports o/a Whitby Oshawa Honda
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed as: Gordon v. Whitby Oshawa Imports
INTRODUCTION
1This Decision deals with an Application filed on December 22, 2010 under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination with respect to employment because of disability. The Application noted that a civil court action with respect to the applicant’s alleged wrongful dismissal of her employment was in progress and a copy of the applicant’s Statement of Claim against the respondent was provided.
2On April 27, 2010, the respondent filed a Response, wherein it indicated that the Application was the same as the applicant’s civil lawsuit as filed against it.
3By way of Case Assessment Direction dated June 15, 2011, the Tribunal directed the parties to file written submissions with respect to whether, pursuant to section 34(11) of the Code, the Tribunal has jurisdiction over the Application because of the concurrent civil proceeding.
4Both parties failed to file submissions in response to the Tribunal’s Case Assessment Direction and the timelines for doing so have elapsed.
ANALYSIS
5I find that section 34(11) bars this Application from proceeding because the applicant commenced a civil suit based on the same facts and allegations and seeking similar remedies. Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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:
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.
7In her Application, the applicant alleges that she was wrongfully dismissed because of her disability. The applicant alleges that the respondent discriminated against her when it terminated her employment because of its unwillingness to accommodate her disability-related needs. In her Application, the applicant seeks special and general damages and restoration of her health benefits.
8In her Statement of Claim, the applicant alleges that the respondent terminated her employment in order to avoid the complications and costs associated with her condition and the risk that she would require accommodation for her disability. In the civil action, the applicant seeks special damages for payment in lieu of notice of termination, punitive, aggravated and exemplary damages on account of the defendant’s bad faith conduct in connection with the termination and a mandatory order requiring the defendant to continue the applicant’s health benefits.
9Based on a review of all the materials, it appears that the applicant relies on the identical facts, claims the same types of employment-related disability rights have been violated and seeks similar remedies in both claims. The applicant appears to have commenced the civil action against the respondent prior to filing this Application.
10Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11 the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to apply:
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.
To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.
11In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 , the Tribunal stated as follows:
If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.
12I am satisfied that the applicant’s Statement of Claim and this Application are based on the identical facts and that both assert similar allegations and seek the same remedies. While the Statement of Claim makes no explicit reference to the Code, it is clear that the applicant’s allegations concern the same events that are alleged to constitute discrimination and harassment in the Application and assert the same rights with respect to unfair dismissal and lack of accommodation.
13If an application falls within the circumstances described in section 34(11), the Tribunal is precluded from proceeding with the application because the language in section 34(11) is a mandatory bar. Given that the Statement of Claim and Application both make claims with respect to disability-related dismissal and failure to accommodate, the Tribunal has no jurisdiction over this Application. The overlap present in the civil proceeding and the Application is exactly what section 34(11) was intended to prevent.
ORDER
14Accordingly, the Application is dismissed.
Dated at Toronto this 9^th^ day of August, 2011.
”Signed by”
Ena Chadha
Vice-chair