Grogan v. Toronto District School Board, 2011 HRTO 954

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Grogan

Applicant

-and-

Toronto District School Board, Alan Avery, Emmanuel Moura,

Patricia Hodgins and Sherrie Ann Burmingham

Respondents

DECISION

Adjudicator: Sherry Liang

Date: May 18, 2011

Citation: 2011 HRTO 954

Indexed as: Grogan v. Toronto District School Board

1This is an Application filed on July 8, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges discrimination in employment on the grounds of race, colour, place of origin, ethnic origin, association with a person identified by a ground of discrimination, and reprisal.

2The respondents have filed a response to the Application in which they seek early dismissal under section 34(11) of the Code, on the basis that the Application is barred by a civil proceeding.

BACKGROUND

3The applicant self-identifies as a Black woman employed by the respondent board at a secondary school. She alleges that the Principal, Vice-Principal and other teachers at the school discriminated against her and harassed her because of her race, and generally disadvantaged her in comparison to white teachers at the school. The allegations of discrimination and harassment include such matters as:

• Social exclusion based on race.

• Undermining the authority of the applicant with students while showing greater respect towards white teachers.

• Withholding teaching materials.

• Undermining the authority of the applicant vis-à-vis white Education Assistants.

• Insisting that the applicant and another racialized teacher be present for parent/teacher interviews while not demanding the same of white teachers.

• Wrongfully accusing the applicant of stealing school equipment.

• Allowing white teachers to take Professional Activity days off while denying the same to the applicant.

• Manipulating the school schedule to advantage white staff.

• Harassment and discrimination arising out of the applicant’s advocacy for disabled, racialized students, including a complaint of harassment made against the applicant as a result of her accusation that a white teacher, one of the personal respondents, was abusing a mentally disabled female student.

4At the time of the Application, the applicant was under suspension from her duties as a result of the complaint against her.

5By Statement of Claim dated November 19, 2010 (subsequently amended on December 21, 2010), the applicant also commenced a civil action against the respondents, as well as additional defendants.

REQUEST TO DISMISS

6The Request to Dismiss is based on section 34(11) of the Code, which reads as follows:

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.

7In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at para. 6, the Tribunal described the operation of s. 34(11) as follows:

If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

8In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11 the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to apply:

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.

9In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109, the Tribunal found that section 34(11) applied whether the civil action was commenced before or after an application to the Tribunal.

10In this case, the Statement of Claim states that it seeks general damages for “all of the causes of actions intertwined involving the intentional or negligent infliction of mental suffering, defamation, and conspiracy to interfere with contractual relations” as well as punitive damages. The Claim alleges that the personal respondents “conspired to cause her mental anguish, to injure her reputation and as well, interfere with her contractual relations” with the Board. It alleges that the individual respondents Ms. Hodgins, Mr. Moura and Mr. Avery “effected their conspiracy” through the discriminatory conduct, among other things, and that as a result of the respondents’ actions, she has suffered embarrassment, injury to her dignity, reputation and risk to her job.

11The Statement of Claim describes the applicant’s interactions with the individual respondents, referring to the same incidents of discriminatory treatment and harassment referenced in the Application and listed above, and alleging a pattern of denigration and differential treatment based on her race. She alleges that the individual respondents instigated the harassment complaint against her, as well as engaged in other harassing behaviour, as a result of her complaint that one of the individual respondents was behaving inappropriately with a mentally disabled female student.

12The Statement of Claim does not specifically cite the Code. Nor does it refer to section 46.1 of the Code. Nonetheless, it is clear that the Statement of Claim alleges discrimination and reprisal by the respondents and seeks damages arising out of that conduct. Read as a whole, the allegations in the Statement of Claim against the respondents rest on the same assertions of discrimination and harassment of the applicant, on the basis of race, as those made in the Application.

13The applicant opposes the Request to Dismiss submitting, among other things, that she is not seeking to be compensated by the civil court for the violations of her human rights. She states that the only connection between the Application and the civil proceedings is the overlapping facts. On my reading of the Statement of Claim, I do not agree with this characterization. Although the Statement of Claim is said to be based on the torts of intentional or negligent infliction of mental suffering, defamation and conspiracy to interfere with contractual relations, these claims in themselves are based on assertions of discrimination and harassment based on race. Therefore, the applicant seeks to be compensated for the same alleged discrimination and harassment for which she seeks remedies before the Tribunal through the civil claim.

14The circumstances of this case are similar to a number of cases in which the Tribunal has found that section 34(11) of the Code applied, despite the absence of an explicit reference to the Code in the Statement of Claim, where allegations of discrimination form the basis for a claim of damages. The Tribunal observed, in McMuldroch v. Honda of Canada Manufacturing, 2009 HRTO 2007:

The factual claims made in the wrongful dismissal action are indistinguishable from the allegations contained in this Application. The Statement of Claim relies upon the same allegations of harassment and discrimination stemming from the same claim of disability that are raised in the Application. That is sufficient to engage the s. 34(11) bar in my view.

The remedies sought in the two proceedings, although not identical, are clearly overlapping. However the fact that the remedies claimed are not identical is not determinative of the issue. See Hallett v. Grey Bruce Health Services, supra. Moreover the allegations of harassment and an alleged ongoing failure to accommodate the applicant/plaintiff form the basis for the applicant’s claim to damages for mental distress and punitive damages.

The Legislature by the enactment of section 34(11) requires that applicants make a choice of forum when bringing complaints that their rights under the Code have been violated. The continued processing of this Application directly engages the policy concerns underlying the section – the dangers of inconsistent findings of fact and the waste of public as well as private resources consequent to duplicative litigation.

15In support of her position that the Application is not barred by section 34(11), the applicant refers to the public interest remedies sought in her Application, which she states falls outside of the civil proceeding. This point was addressed in the passage above, in referring to the Tribunal’s decision in Hallett v. Grey Bruce Health Services, 2009 HRTO 403, where the Tribunal found that section 34(11) applied despite the fact that the application to the Tribunal sought only public interest and non-monetary remedies:

These are early days since the effective date of the amendments to the Code, and the courts have yet to rule on the precise scope of their remedial jurisdiction under s. 46.1. However, with respect, that is not the issue under s. 34(11). The issue under s. 34(11) is whether an order under s. 46.1 is claimed in the civil action as a result of the alleged Code infringement, not whether additional or different remedies might be capable of being claimed in an application before this Tribunal. In the instant case, there is no question that a significant amount of financial compensation is being sought in the civil action from Dr. Eby and GBHS as a result of the alleged breach of their duties to take affirmative action to intervene and address the dispute over the accommodation of the applicant’s disability within her physicians group, which I have found encompasses any duties they may have had under the Code. As a result, in my view, a remedy under s. 46.1 is being sought as a result of the alleged infringement of the applicant’s rights under the Code. [emphasis in original]

16In the result, I find that applicant’s civil claim seeks remedies with respect to infringement of her rights under the Code. Accordingly, section 34(11) applies to bar this Application and it is dismissed.