Marisa Burton v. Innovative Staffing Inc., 2012 HRTO 11

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marisa Burton Applicant

-and-

Innovative Staffing Inc. Respondent

DECISION

Adjudicator: Ena Chadha Date: January 4, 2012 Citation: 2012 HRTO 11 Indexed as: Burton v. Innovative Staffing Inc.

INTRODUCTION

1This Decision deals with an Application filed on October 11, 2011 under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleging sexual solicitation and advance with respect to employment. The Application noted that a civil court action with respect to the applicant's alleged wrongful dismissal of her employment was in progress and a copy of the applicant's Statement of Claim against the respondent was provided. The Application has not yet been delivered to the respondent.

2On November 8, 2011, the Tribunal issued a Notice of Intent to Dismiss which directed the applicant to file written submission with respect to whether, pursuant to under section 34(11) of the Code, the Tribunal has jurisdiction over the Application because of the concurrent civil proceeding.

3The applicant filed brief submissions on December 7, 2011. The applicant acknowledges that a civil action was commenced; however, the applicant indicates that the civil suit does not seek an order under the Code and has not been settled or withdrawn. The applicant requests that the Tribunal's process be deferred pending the civil matter.

ANALYSIS

4I find that section 34(11) bars this Application from proceeding because the applicant commenced a civil suit based on the same facts and allegations and seeking similar remedies. 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 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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:

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.

6In her Application, the applicant alleges that she was dismissed because it was alleged that she engaged in sexual harassment. The applicant alleges that she did not engage in sexual harassment, but rather she was the victim of sexual harassment by a co-worker. The applicant alleges the respondent employer discriminated against her when it failed to protect her from the harasser and terminated her employment. The Application further alleges that, upon attending at the applicant's workplace, the applicant's relative was informed that the applicant was dismissed for flirting. In her Application, the applicant seeks loss of income damages for one year's wages ($30,000), general damages ($50,000) and damages for mental distress ($20,000), totaling $100,000.

7The applicant's Statement of Claim is dated December 16, 2010. In her Statement of Claim, the applicant alleges that the respondent wrongfully terminated her employment wherein it alleged that she engaged in sexual harassment. The Statement of Claim indicates that the applicant was subjected to sexual harassment and that the respondent, despite being aware of the harassment experienced by the applicant, failed to remedy the same. The Statement of Claim further alleges that the respondent failed to properly investigate the allegations of sexual harassment and failed to maintain confidentiality. In the civil action, the applicant seeks damages for the wrongful termination ($35,000), mental distress damages ($50,000), punitive/aggravated damages ($15,000), totaling $100,000.

8The applicant appears to have commenced the civil action against the respondent prior to filing this Application. Based on a review of Application, it appears that the applicant relies on the identical facts, alleges the same types of employment-related rights have been violated and seeks similar remedies as set out in the Statement of Claim.

9Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Smith v. Sears Canada, 2010 HRTO 1834, the Tribunal explained the analysis to be considered for section34(11) as follows:

The determinative question remains whether the applicant did, whether explicitly or implicitly, raise the Code and seek remedies for alleged breaches by way of the civil proceeding. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section34(11). If not, however, then the factual similarity between the two proceedings is not sufficient to dislodge the Tribunal's jurisdiction over a matter that is otherwise properly brought before it.

10In 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 preclude jurisdiction:

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.

11In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, the Tribunal stated 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.

12I am satisfied that the applicant's Statement of Claim and this Application are based on the same facts and that both assert the same type of allegations, as well as seek similar remedies. While the Statement of Claim makes no explicit reference to the Code, it is clear that the applicant's allegations concern the same events that are alleged to constitute sexual harassment in the Application and that both assert the same rights with respect to unfair dismissal and lack of protection from sexual harassment and lack of investigation.

13If an application falls within the circumstances described in section 34(11) of the Code, the Tribunal is precluded from proceeding with the application because the language in section 34(11) is a mandatory bar. Given that the Statement of Claim and Application both make claims with respect to sexual harassment, unfair dismissal and failure to protect and investigate and seek similar remedies, the Tribunal has no jurisdiction over this Application. The overlap present in the civil proceeding and this Application is exactly what section 34(11) of the Code was intended to prevent.

14In light of my findings with respect to section34(11), it is unnecessary for me to consider the applicant's request to defer.

15Accordingly, the Application is dismissed.