HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Clifford Beatty
Applicant
-and-
Best Theratronics Ltd.
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed as: Beatty v. Best Theratronics
INTRODUCTION
1This Decision deals with an Application filed on January 12, 2011 under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination with respect to employment because of age and disability. The Application noted that a civil court action was underway.
2On April 15, 2011, the respondent filed a Response and requested the Tribunal dismiss the Application under section 34(11) of the Code because of a concurrent civil proceeding. The respondent provided a copy of the applicant’s Statement of Claim and its Statement of Defence.
3In a Notice dated April 19, 2011, the Tribunal directed the applicant to respond to the respondent’s request that the Application be dismissed because there is an ongoing court proceeding arising out of the same facts.
4On April 29, 2011, the applicant wrote to the Tribunal indicating that his wrongful dismissal suit is a completely different matter from his human rights Application.
DECISION
5The respondent argues that section 34(11) of the Code bars this Application from proceeding because the applicant has commenced a civil suit based on the same facts and allegations, in which the applicant seeks similar remedies. Section 34 (11) 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
6Section 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.
7In his Application, the applicant alleges that he was harassed and discriminatorily dismissed because the respondent wanted someone younger and healthier. The applicant seeks two years severance pay as monetary compensation for the alleged harassment and discrimination.
8The applicant commenced the civil action against the respondent on October 26, 2010, prior to filing his Application. The Statement of Claim alleges that the respondent subjected the applicant to discrimination and harassment and the prayer of relief at the outset of the Statement of Claim seeks compensation for discrimination and harassment.
9Based on a review of both the Application and the Statement of Claim, it appears that the applicant relies on the same facts as alleged in his civil suit as in his Application. The applicant also seeks similar remedies in both claims.
10Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paras. 10-11, the Tribunal discussed the purpose of section 34(11) and held that a claim need not specifically plead [section 46.1](https://www.canlii.org/en/on/laws/stat/