Adine Owieczka v. Staples Canada Inc., 2011 HRTO 1926

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adine Owieczka Applicant

-and-

Staples Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 25, 2011 Citation: 2011 HRTO 1926 Indexed as: Owieczka v. Staples 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 August 2, 2011 alleging discrimination with respect to employment on the basis of disability.

2On October 7, 2011, the Tribunal issued a Notice of Intent to Dismiss on the basis that the applicant had commenced a civil proceeding based on the same facts as the Application. The Tribunal directed the applicant to file submissions as to whether the Application should be dismissed pursuant to section 34(11) of the Code.

3On October 12, 2011, the applicant filed submissions opposing dismissal. The applicant provided a copy of a Notice of Discontinued Claim, which was issued by the Superior Court of Justice on July 26, 2011. The applicant submits that, since the civil action was withdrawn prior to a defence being filed and prior to the applicant filing this Application, the circumstances do not fit within the provisions of section 34(11) of the Code.

4Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

5Based on the applicant’s submissions, it appears that, prior to the commencement of this Application, the civil action was withdrawn and, therefore, given the wording of section 34(11)(a), the Tribunal can proceed with the Application.

6The Tribunal orders that the Registrar will forward a copy of this Interim Decision to the respondent together with the Application, a Notice of Application, the Notice of Intent to Dismiss and the applicant’s submissions and documentation.

7I am not seized.