Casiba v. NUS Consulting Limited and National Utility Services Limited, 2011 HRTO 908

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Violeta Casiba

Applicant

• and-

NUS Consulting Limited and National Utility Services Limited

Respondents

decision

Adjudicator: Ian R. Mackenzie

Date: May 10, 2011

Citation: 2011 HRTO 908

Indexed as: Casiba v. NUS Consulting

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment on the basis of age. Her employer was NUS Consulting Group, also known as National Utility Services Ltd. The applicant has named both NUS Consulting Group and National Utility Services Ltd. as respondents to the Application, but for the purposes of this decision both are referred to collectively as the respondent.

2In her Application, she states that a statement of claim had been filed in relation to the same events set out in the Application. A copy of the statement of claim before the Ontario Superior Court of Justice (court file no. CV-11-418659) was sent to the Human Rights Tribunal of Ontario (the “Tribunal”) by counsel for the Applicant on March 24, 2011. The Statement of Claim includes a claim relating to breaches of the Code.

3A Notice of Intent to Dismiss was sent to the Applicant on March 29, 2011. The Notice stated that it appeared that the Application was outside of the jurisdiction of the Tribunal because the applicant had commenced a civil proceeding in which she alleged breaches of the Code. The applicant was asked to provide written submissions with respect to this issue by April 28, 2011. The Notice stated that if submissions were not provided, the Tribunal would make its decision based solely on the information in the Application or could consider the failure to respond as an abandonment of the Application. The applicant did not provide submissions within the allotted time.

DECISION

4For the reasons that follow I dismiss the Application.

5Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

6Section 46.1 of the Code reads as follows:

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.

7In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Vice-chair held:

9Although issues under the Code may arise in various other types of legal proceedings, it is only where the applicant has brought a civil proceeding as described in s. 34(11) that the legislation provides that the Tribunal has no jurisdiction over the application. In other circumstances, the application may be deferred pursuant to s. 45 and Rule 14 of the Tribunal’s Rules of Procedure where another proceeding is ongoing, or dismissed in whole or in part if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application under s. 45.1 and Rule 22.

10Section 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.

8The applicant alleges in her Application that she was being constructively dismissed by her employer, the respondent, through the reduction of her full-time hours of work to part-time. She alleges that this reduction in hours was only being implemented by the respondent for long-service employees and alleges that this is discrimination on the basis of age. As a remedy, she seeks $20,000 in monetary compensation, based on lost wages.

9The applicant filed her Statement of Claim in the Superior Court of Justice of Ontario before filing her Application with the Tribunal. In that Statement of Claim she alleges constructive dismissal by the respondent. She also pleads that the respondent discriminated against her due to her age and disability and was in breach of its duty of accommodation, contrary to the Code (paragraphs 37-38 of the Statement of Claim). The applicant requests reinstatement to a full-time position, payment for lost wages and benefits and $10,000 in punitive damages. She also requests “further and other relief as the court deems just”.

10The Statement of Claim raises the same facts and issues as those in the Application before the Tribunal, and seeks a remedy for the same actions by the same respondent. The Statement of Claim repeats the allegations contained in the Application, including references to differential treatment on the basis of a ground under the Code.

11Although the applicant has not specifically pleaded section 46.1 in her Statement of Claim, reliance on this provision is implied by her reference to a breach of the Code and her request for punitive damages. As noted in Beaver, to find that subsection 34(11) of the Code only applies if section 46.1 is specifically pleaded in the civil action is an overly technical interpretation that would defeat the purpose of subsection 34(11).

12The applicant is therefore precluded from bringing this Application by subsection 34(11) of the Code.

13The Application is dismissed.