Abraham v. University Health Network, 2011 HRTO 230

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Abraham Applicant

-and-

University Health Network Respondent

Adjudicator: Kathleen Martin Date: February 1, 2011 Citation: 2011 HRTO 230 Indexed as: Abraham v. University Health Network

DECISION

1. The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), on July 2, 2010.

2. On September 29, 2010 the Tribunal sent the applicant a Notice of Intent to Dismiss (Notice) as it appeared the Application was outside the Tribunal's jurisdiction to decide. The applicant was directed to respond to the Notice by no later than thirty days after September 29, 2010 and advised if the applicant failed to respond the Tribunal would decide the issue based on the material in her Application or might treat the failure to respond as an abandonment of the Application and dismiss it on that basis.

3. On October 29, 2010 the applicant emailed the Tribunal asking to extend the time to respond. A subsequent email confirmed that the applicant wished to extend the time for her response until February 28, 2011.

4. On November 29, 2010 the Registrar wrote to advise the applicant that the time for response to the Notice was extended to December 13, 2010, effectively extending the time to respond by six weeks.

5. On December 15, 2010 the applicant wrote to request a further extension of time to respond to the Notice. The applicant was granted until December 29, 2010 to file her response.

6. As of the date of this Decision the applicant has not filed a response to the Notice.

DECISION

7. The applicant acknowledges that she has an ongoing civil action against the respondent arising out of the facts on which her Application is based and seeking a remedy for discrimination.

8. The statement of claim filed in her civil proceeding and which is attached to her Application expressly pleads that the respondent discriminated against the applicant contrary to the Code and seeks damages for the violation of the Code and the injury to her dignity, feelings and self-respect.

9. Section 34(11) of the Code provides:

34(11)

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. . .

(b)

a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

10. Section 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.

11. The Tribunal considered the effect of these provisions in Beaver v. Dr Hans Epp Professional Dentistry Corporation, 2008 HRTO 282 [CHRR Doc. 08-900]. At paragraph 10 of the decision the Tribunal concluded:

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.

12. I find s. 34(11) is applicable to the circumstances of this case. As a result the Tribunal does not have the jurisdiction to consider the Application and it is therefore dismissed.

Dated at Toronto, this 1st day of February, 2011.

"signed by"

Kathleen Martin

Vice-chair