HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jim McCleave
Applicant
-and-
Armatec Survivability Corp.
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Date: December 30, 2011
Citation: 2011 HRTO 2325
Indexed as: McCleave v. Armatec Survivability Corp.
[1] The purpose of this Interim Decision is to address the respondent’s request for an early dismissal of the Application on the basis that it is barred by subsection 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
[2] The applicant filed this Application on September 26, 2011, alleging discrimination in employment on the basis of disability and reprisal in employment. Specifically, he alleges that the respondent disciplined him for disability-related incidents, and then broadcast his intention to file a complaint under the Code, which hurt his ability to obtain a good reference after he was laid off from the respondent.
[3] On August 15, 2011, the applicant filed a Statement of Claim alleging wrongful dismissal. He filed an amended Statement of Claim on November 14, 2011, in which he states at para. 26:
…the Plaintiff wishes to note that he has also filed a Human Rights complaint against Armatec and Ares in regards to matters totally unrelated to the claim herein. That complaint is related to two separate acts of discipline which were imposed upon him by Armatec during his tenure there.
[4] 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 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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 finally settled.
[5] Section 46.1 of the Code provides:
(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.
[6] 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. See [Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282](https://www.minicounsel.ca/hrto/2008/282), at para. [10](https://www.minicounsel.ca/hrto/2008/282).
[7] The respondent argues that the Statement of Claim and Application both concern the applicant’s alleged wrongful termination from employment. In fact, it would appear from the Application that the applicant does not seek a remedy for the termination of his employment, and does not link the discriminatory discipline he alleges he received with his termination.
[8] The Statement of Claim makes reference to an allegation of harassment the plaintiff/applicant made with respect to another employee and alleges his employment was wrongfully terminated because he made and pursued that allegation. However, he states that this was contrary to the Occupational Health and Safety Act as opposed to the Code.
[9] The applicant submits that this is distinct from the two allegations of improper discipline set out in his Application to the Tribunal. On the basis of the allegations set out in the two documents, I agree. A comparison of the Application and the Statement of Claim show that the allegations are widely divergent. Moreover, the applicant does not seek remedies for the violation of his Code rights in his Statement of Claim.
[10] On the basis of the differences in the two proceedings, I conclude that this Application is not barred by operation of subsection 34(11). Accordingly, the respondent’s request for dismissal on this basis is denied.
[11] I am not seized of this matter.
Dated at Toronto, this 30th day of December, 2011.
“Signed by”
Naomi Overend
Vice-chair