Williams-Salassidis v. KSD Enterprises Ltd., 2011 HRTO 2194

Human Rights Tribunal of Ontario

B E T W E E N:

Claudia Williams-Salassidis Applicant

-and-

KSD Enterprises Ltd. c.o.b. as Doubletree By Hilton, Toronto Airport Respondent

DECISION

Adjudicator: Ena Chadha Date: December 6, 2011 Citation: 2011 HRTO 2194 Indexed as: Williams-Salassidis v. KSD Enterprises Ltd.

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 September 28, 2011, alleging discrimination with respect to employment on the basis of disability.

2The applicant’s narrative alleges that her employer required her to work excessive overtime causing her to go on medical leave. The applicant alleges that her return to work was subject to medical restrictions which the respondent failed to accommodate. The applicant alleges that the failure to accommodate her condition resulted in significant emotional distress.

3The respondent filed a Response on November 14, 2011, denying the allegations. The respondent submits that the applicant’s claims fit within the provisions of section 34(11)(a) of the Code. The respondent requests 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.

4On November 15, 2011, the Tribunal issued a Notice of Request to Dismiss or Defer. The Tribunal directed the applicant to file submissions as to whether the Application should be dismissed or deferred.

5On November 29, 2011, the applicant filed submissions opposing dismissal. The applicant consents to the request to defer. The applicant acknowledges that a civil action is proceeding; however, the applicant indicates that, notwithstanding factual similarity, the civil claim does not seek a relief under the Code.

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

9Both parties provided a copy of the applicant’s Statement of Claim, which was issued in the Ontario Superior Court of Justice on September 12, 2011.

10I find that Application and the Statement of Claim are duplicative in that they assert matching allegations with exactly identical passages based on the same factual events. The Statement of Claim seeks punitive, exemplary and aggravated damages for the emotional distress the applicant suffered because of the respondent’s alleged mistreatment in forcing excessive overtime and failure to accommodate medical restrictions. The Application also seeks monetary compensation “on account of emotional distress and or pain and suffering” sustained because of the respondent’s failure to accommodate, as well as loss of income.

11In 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.

12The 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 the identical unfair treatment and seeks damages arising out of the same conduct as alleged in the Application.

13I am satisfied that the applicant’s Statement of Claim and the Application are based on the same facts, both contain the same allegations and seek remedies for the same alleged rights violations. While the Statement of Claim makes no explicit reference to Code damages, it is clear that the Statement of Claim pleads damages in relation to the same alleged Code violations, in particular the issue of failure to accommodate disability. I further note that the civil action was commenced before the Application to the Tribunal.

14I conclude that the applicant’s Statement of Claim asserts the same form of mistreatment that is alleged in the Application and that there are overlapping remedies sought in both matters. I find that this duplication is sufficient to engage section 34(11) of the Code. If 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 assert human rights allegations and seek damages for the same rights violations, the Tribunal has no jurisdiction over this Application.

15Accordingly, the Application is dismissed. Given my finding regarding the applicability of section 34(11), I do not need to address the respondent’s alternative request to defer.