HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andy Chua by his Substitute Decision-Maker Lorna Chua Applicant
-and-
Re/Max Realtron Realty Inc. Respondent
DECISION
Adjudicator: Mary Truemner Date: June 19, 2012 Citation: 2012 HRTO 1207 Indexed as: Chua v. Re/Max Realtron Realty Inc.
WRITTEN SUBMISSIONS
Andy Chua by his Substitute Decision-Maker Lorna Chua, Applicant Lorna Chua, Self-represented
Re/Max Realtron Realty Inc., Respondent Richard Pilarski, Representative
Introduction
1This is an Application filed on January 19, 2011 under section 34(1) 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 because of disability. On January 3, 2012, a Notice of Confirmation of Hearing was sent to the parties, advising them that the hearing is scheduled for July 5th and 6th, 2012.
2On May 29, 2012, the respondent filed a Request for Order During Proceedings in which it seeks early dismissal under section 34(11) of the Code, on the basis that the Application is barred by a civil proceeding recently commenced by the applicant. As of the date of this Decision, the applicant has not responded to the Request.
REQUEST TO DISMISS
3Section 34(11) of the Code states:
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
4In 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.
5In 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.
6As stated in McMuldroch v. Honda of Canada Manufacturing, 2009 HRTO 2007, at para. 11:
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.
7In 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. In Grogan v. Toronto District School Board, 2012 ONSC 319, the Divisional Court upheld a matter similarly decided by the Tribunal (see Grogan v. Toronto District School Board, 2011 HRTO 954).
8In this case, the applicant claims that he was employed by the respondent as a sales agent, and that the respondent terminated his employment immediately after he sustained injuries in an accident in September 2009, and informed the respondent that he needed time away from work to recover. The applicant alleges that the reason for the termination is disability. The Application indicates the following as remedies:
- Lost income/commission for 2010 and 2011, amounting to $500,000
- Lost benefits premiums for 48 months, amounting to $21,600
- General damages for loss of dignity, pain and suffering, amounting to $25,000
9By Statement of Claim dated March 8, 2012, the applicant commenced a civil action against the respondents for wrongful dismissal, claiming, amongst other things, that the respondent discriminated against him because of his injuries, failed to accommodate him, and "terminated him based on his temporary inability to work resulting from his catastrophic injuries." In his civil action, the applicant is claiming damages in the amount of $750,000 for which he states he will later provide particulars, as well as damages for discrimination and for mental distress. As indicated above with reference to Grogan, supra, the fact that the Statement of Claim was filed after the Application is not determinative of whether it should be dismissed under section 34(11).
10The Statement of Claim does not specifically cite the Code, but it does allege discrimination because of disability, and it is clear that the discrimination alleged against the respondent in the Statement of Claim is the same as the discrimination alleged in the Application. There is an overlap of facts and issues which engages s.34(11), and while the Statement of Claim does not specifically seek an order under section 46.1 of the Code, the remedies sought in the Statement of Claim significantly overlap with the remedies sought in the Application. In particular, the Statement of Claim seeks, amongst other damages, damages arising out of the conduct specifically alleged to be discrimination – discrimination because of disability as identified in both the Statement of Claim and the Application. The fact that all of the remedies sought in each are not identical is not determinative of whether the Application is barred by statute. See Hallett v. Grey Bruce Health Services, 2009 HRTO 403, at para. 15.
11I find that the remedies that the applicant seeks in his civil claim include remedies with respect to infringement of his rights under the Code. Accordingly, section 34(11) applies to bar this Application.
ORDER
12The Application is dismissed.
Dated at Toronto, this 19th day of June, 2012.
Signed by
Mary Truemner Vice-chair