Chaves v. General Electric Canada Inc., 2011 HRTO 1659

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Duarte Chaves Applicant

-and-

General Electric Canada Inc., Angela Morgan and Robert Walker Respondents

DECISION

Adjudicator: Ena Chadha Date: September 8, 2011 Citation: 2011 HRTO 1659 Indexed as: Chaves v. General Electric Canada Inc.

1The applicant filed an Application with the Tribunal under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), on March 17, 2011 alleging discrimination with respect to employment on the basis of disability and age.

2The applicant alleges that he was subjected to discrimination and harassment by his supervisor who sought to oust the applicant from the workplace in order to replace him with a friend. The applicant alleges that his supervisor used the applicant’s age and health as a basis to make it difficult for him to work and to allege that the applicant was incapable of performing the job. The applicant alleges that the supervisor required him to undergo medical testing, he was subsequently placed on disability leave, and he was eventually replaced by the supervisor’s friend. The applicant alleges that the respondent employer did not heed his concerns about the supervisor’s conduct.

3The respondents filed a Response on April 15, 2011 denying the allegations. The respondents request that the Tribunal dismiss the Application because the applicant has launched a civil action based on the same facts as the Application or, alternatively, that the Application be deferred pending conclusion of the civil matter. The respondents provided a copy of the applicant’s Statement of Claim, which was issued in the Superior Court of Justice on March 15, 2011. The respondents submit that the applicant’s claims fit within the provisions of section 34(11) of the Code.

4On May 19, 2011 the Tribunal issued a Notice of Intent to Dismiss or Defer. The Tribunal directed the applicant to file submissions as to whether the Application should be dismissed or deferred.

5On August 22, 2011, the applicant filed submissions opposing dismissal and deferral. The applicant acknowledges that a civil action is proceeding; however, the applicant indicates that, notwithstanding factual similarity, the civil claim does not raise the Code. The applicant also opposes deferral on the basis that the civil claim is a long way from completion and that the two proceedings are separate matters.

ANALYSIS

6The Request to Dismiss is based on section 34(11) of the Code. 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.

7Section 46.1 of the Code 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

8Section 34(11) bars an application from proceeding where the applicant has commenced a civil suit based on the same facts and allegations and seeking similar remedies.

9I find that Application and the Statement of Claim are duplicative in that they assert parallel allegations with almost identical passages based on the same factual events and seek similar remedies. The Statement of Claim alleges that the applicant was harassed by his supervisor who attempted to oust the applicant from his job in order to bring in a friend. The Statement of Claim further alleges that the supervisor unfairly asserted that the applicant was physically incapable of performing his job and that management failed to curtail the supervisor’s behaviour. The Statement of Claim indicates that the applicant was put through unnecessary medical testing and that the management ignored the applicant’s rights under employment and human rights law. As part of his civil claim, the applicant seeks various damages, including for wrongful dismissal, mental distress and legal costs. In his Application, the applicant seeks general damages for injury to his dignity, feelings and self respect, special damages for lost wages and legal costs.

10In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the following principles applicable to the interpretation 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.

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.

11The fact that section 46.1 of the Code has not been specifically pled in the Statement of Claim does not preclude a finding that the Application falls within the scope of section 34(11). It is apparent that the Statement of Claim alleges unfair treatment, harassment and failure to protect by the respondents and seeks damages arising out of the same conduct alleged in the Application.

12In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109, the Tribunal found that section 34(11) applied whether the civil action was commenced before or after an application to the Tribunal.

13In conclusion, I find that the applicant’s Statement of Claim asserts the same form of mistreatment that is alleged in the Application to constitute harassment and discrimination because of disability and age and that there are overlapping remedies sought in both matters. I find that this duplication is sufficient to engage section 34(11) of Code and bars the Application from proceeding.

14Accordingly, the Application is dismissed. Given my finding regarding the applicability of section 34(11), I do not need to address the respondents’ request to defer.