HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bryce Taylor
Applicant
-and-
Fastenal Canada Ltd. and Jason Power
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Taylor v. Fastenal Canada Ltd.
WRITTEN SUBMISSIONS
Bryce Taylor, Applicant
Stephen M. Shaddock, Counsel
Fastenal Canada Ltd. and Jason Power, Respondents
Patricia Forte, Counsel
Introduction
1This Application was filed on July 4, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the ground of disability. The applicant alleges that the respondents failed to properly accommodate his disability when he attempted to return to work on a trial basis following a medical leave of absence and that the respondents discriminatorily terminated his employment.
2On November 18, 2011, the respondents filed a Form 2 without a full response, asking that the Tribunal dismiss this Application on a preliminary basis because the applicant has commenced a civil action based on the same facts and remedies as sought in the Application. The respondents provided a copy of the applicant’s Statement of Claim, which was filed in the Superior Court of Justice on July 28, 2011, and a copy of their Statement of Defence, dated August 31, 2011. The respondents submit that the Application is barred by section 34(11) of the Code.
3The applicant filed submissions on March 16, 2012 opposing the respondents’ request to dismiss. The applicant provided a copy of his Amended Statement of Claim, dated January 24, 2012. The applicant asserts that the civil action and the Application are not duplicative of any human rights allegations or remedies.
ANALYSIS
4The respondents’ request to dismiss is based on section 34(11) of the Code, which provides that:
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
5Section 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
6Section 34(11) bars an application from proceeding in a situation where the applicant has commenced a civil suit based on the same facts and seeking similar remedies for the alleged human rights violations.
7In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the following principles applicable to the interpretation of section 34(11):
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.
8In their submissions, the respondents argue that the Application should be dismissed as it is based on the same facts underlying the civil action. The respondents provided a comparison of the Application and the original Statement of Claim demonstrating that many of the same remedies were being sought in both proceedings. The respondents argued that they would be prejudiced if the Application was allowed to proceed because they would incur unnecessary costs to defend duplicative proceedings.
9While the overlap between the original Statement of Claim and the Application was captured by section 34(11), I find that the amended claim does not come within the provisions of section 34(11) of the Code. The Amended Statement of Claim no longer makes allegations of human rights infringements, nor seeks remedies for any such alleged infringements. The Statement of Claim was amended to delete all passages regarding the respondents’ alleged failure to accommodate. The Amended Statement of Claim no longer pleads reliance on the Code and does not reference human rights concerns or request any human rights remedies. As such, the two proceeding do not contain duplicative Code-related claims.
10The fact that the Application is based on the same factual chronology as alleged in the civil action is not sufficient to bar the Application under section 34(11). If the alleged violations and legal theories asserted in the two proceedings are distinct and the remedial claims do not intersect, a mere overlap in factual background does not trigger section 34(11) of the Code.
11Having reviewed the parties’ materials, I accept the applicant’s position that the civil action only seeks damages for a breach of the common law reasonable notice period and, therefore, section 34(11) of the Code does not apply.
12On the basis of the differences in the two proceedings, I conclude that this Application is not barred by operation of section 34(11). Accordingly, the respondents’ request for early dismissal is denied.
13Within 35 days of the date of this Interim Decision, the respondents are required to file a full Response (Form 2).
14I am not seized of this matter.
Dated at Toronto, this 29th day of May, 2012.
“Signed by”
Ena Chadha
Vice-chair