HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dulce Acosta
Applicant
-and-
Far Horizons Inc., Evan Frank and Mark Schwartz
Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Acosta v. Far Horizons Inc.
WRITTEN SUBMISSIONS
Dulce Acosta, Applicant
Terri H. Semanyk, Counsel
Far Horizons, Evan Frank, Mark Schwartz, Respondents
Jean-François Lalonde, Counsel
Introduction
1This is an Application filed 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 because of race, colour, place of origin, ethnic origin and sex.
2In a previous Interim Decision, 2010 HRTO 1332, the Tribunal deferred this Application pending the conclusion of a civil action filed by the applicant (the “civil proceeding”), and deferred considering the respondents’ request that the Application be dismissed pursuant to section 45.1 until the civil proceeding had concluded. The civil proceeding has now concluded with a judgment issued by the Ontario Superior Court of Justice, Small Claims Court at Ottawa, dated July 20, 2011, in favour of the applicant on some issues (the “judgment”). A copy of the judgment was filed with the Tribunal. Following receipt of the judgment, the applicant filed a request to proceed under rule 14.3 (“request”) to which the respondents did not file a response. The applicant’s request was granted in an Interim Decision, 2011 HRTO 2114.
3In granting the applicant’s request, the Tribunal stated that with the civil proceeding now concluded, it would be appropriate to receive submissions from the parties on whether section 45.1 of the Code applies in these circumstances. The Tribunal also referred the parties to the recent Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 in making their section 45.1 submissions. The parties have now filed their submissions and have waived the option of an oral hearing, advising that they are content to rely upon their written submission for the determination of this issue.
4The applicant submits that in the civil proceeding, she did not claim damages for any alleged Code violation and the judgment did not award damages for any Code violation. The focus of the civil proceeding was whether she was terminated for just case, as claimed by the respondents. The applicant submits that she did not contend (either in the civil proceeding or in this Application), that her termination was discriminatory. By contrast, she submits, the essence of her Application is that she endured discriminatory comments during her employment, which was not alleged during the civil proceedings. Accordingly the principles of res judicata, issue estoppel and abuse of process do not apply because the applicant is not re-litigating the same issues in her Application as in her civil claim, although some of the same evidence may be tendered into the Tribunal’s proceedings but “from a different perspective”.
5The respondents submit that the Tribunal should dismiss the Application as the civil proceeding appropriately dealt with the substance of the Application and the underlying event, the applicant’s employment, giving rise to both the civil proceeding and the Application is the same. The respondents charted out what they saw were the similarities between the issues raised in the civil proceeding and those in the Application. They submit that the Tribunal should dismiss the Application pursuant to section 45.1 of the Code and because it would be an abuse of process to allow the Application to proceed.
6For the reasons that follow, the Application is dismissed in part.
ANALYSIS
7Section 45.1 of the Code provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
8In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 (“Figliola”), the Supreme Court considered a similar provision to section 45.1 of the Code from the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, s. 27 (1) (f). At paragraph 34 of Figliola, the Court summarized the principles that underlie provisions such as section 45.1 as follows:
It is in the interests of the public and the parties that the finality of a decision can be relied on;
Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings;
The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature;
Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision; and
Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.
9It is clear that courts have the jurisdiction to determine whether or not an applicant’s Code rights have been violated, hence the inclusion of sections 34(11) and 46.1 into the Code. In this case, the judgment of the court does not reflect any allegations of or a consideration of allegations of a violation of the Code.
10However, in the judgment, the judge made specific findings with respect to the applicant’s termination. He accepted the applicant’s explanation about why she did not pay the balance of the cost of her sister’s trip and found that she was wrongfully dismissed, rather than terminated for just cause, and awarded her salary in lieu of notice, though he denied her claim for punitive damages. He also made findings about “on the job training” and “free travel privileges” as part of her claim for damages for negligent misrepresentation, which he denied. The judge heard evidence from the respondents that the applicant was incompetent and made some findings about her competency in relation to her termination noting that she continued to work for the corporate respondent notwithstanding the respondents’ stated concerns about her competency.
11Yet in her Application, the applicant also alleges discrimination in being fired, and references the allegation which was before the court, regarding being accused of lying and of stealing an airline ticket for her sister. She also provides details about the effects of that being fired had on her life, seeks a financial remedy in the amount of $50,000.00 which includes, among other remedies, “damages for loss of opportunity” (in relation to her allegation that the respondent had promised opportunities for free travel), and “money for employment training”. She alleges that “the owner directly called me stupid and incompetent and in general was demeaning and disrespectful of me, my abilities and my talents”. Additionally, the applicant alleged in her narrative that when a client was displeased with his itinerary, “I knew he [one of the personal respondents] would yell at me or start to lecture me, call me stupid and incompetent again”. She also alleged “I spent many overtime hours working on a window display for the store and I was still called stupid and incompetent”. A legal determination about the applicant’s termination, including allegations of dishonesty and incompetence leading up to her termination, has been determined in the judgment.
12The Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, addressed the principles of litigation finality, in relation to multiple legal proceedings, including issue estoppel and abuse of process. At para. 18, the court held:
The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.
13A party is normally expected to bring their entire case forward and not split it up into several pieces, adding to the cost and uncertainties associated with duplicative litigation. See Cunningham v. CUPE 4400, 2011 HRTO 658 at para. 58 and Danyluk, supra.
14Specifically, with respect to the application of Figliola, supra., to Tribunal proceedings, Associate Chair Wright stated in Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, at para. 21:
In my view, the analysis adopted in Figliola applies to the interpretation of s. 45.1 of the Code, and mandates that an application be dismissed if another proceeding has determined the issues raised in the application. This Tribunal cannot, under s. 45.1, decide to proceed with an application based on a review of the process or substance of the other proceeding.
15Further, in Paterno v. Salvation Army, 2011 HRTO 2298, Associate Chair Wright commented at para. 25:
This Tribunal has emphasized throughout its jurisprudence on s. 45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing relitigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal found that the analysis applied by the special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c. E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qui v. Neilson, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s. 45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an application or part of an application to succeed, the application or part must be dismissed.
16Applying these principles to this Application, either through the application of section 45.1 of the Code or abuse of process, I find it appropriate to exercise my discretion under s. 45.1 and to dismiss that part of the Application that relates to the applicant’s termination and allegations pertaining to competency (or incompetency). This would also apply to the following from the applicant’s narrative:
…A client who did not like his itinerary from American Airlines called late on a Tuesday night to complain. I thought there was a 24 hour window. Mr. Frank had done the ticket (but he usually worked from home). I did not want to call Mr. Frank because I knew he would yell at me or start to lecture me, call me stupid and incompetent again and so I left Tuesday evening with the intent to deal with the complaint first thing in the morning.
Another time, a client who did not like his itinerary for American Airlines called late on a Tuesday night to complain. This was Mr. Frank’s client and he had done the ticket (but he usually worked from home). I did not want to call Mr. Frank because I knew he would yell at me or start to lecture me, call me stupide and incompetent again. I had been told previously that there was a 24 hour window to cancel, so I left thinking I could deal with it first thing in the morning. Mr. Frank got very angry with me because of this and said I would have to pay for any loss.
At least once a week after I started working, the owner would tell me that he was paying a lot of money to me when I had learned nothing. In April, about three months after I started working, the owner began to tell me, either in person or over the phone, that I was stupid and that I was incapable of learning anything. He would repeat this so often that I became afraid to talk to him. I worked very hard for his company and tried to come up with ways to get more customers. For example, I spent many overtime hours working on a window display for the store and I was still called stupid and incompetent.
On more than one occasion I was accused of stealing from the company and or lying to them. Either for my language abilities or when I did not pay my sister’s airplane ticket back on time. I felt like I was treated as a thief and a liar and I am neither of those.
17I find that these allegations have been addressed in the court proceedings.
18However, I do find it appropriate to allow the Application to proceed as it relates to the applicant’s allegations pertaining to the discriminatory comments made by the respondents, which allegedly created a poisoned working environment. These allegations are included in the five pages of narrative attached to the Application, except for the points set out in paragraph 16 above. While it may have been preferable to have had those allegations also before the court, they are not mentioned in the applicant’s Statement of Claim and were not raised or considered in the judgment.
19As I have determined that the allegations pertaining to the applicant’s termination cannot continue to proceed, and since some of the remedies for which the applicant seeks appear to be related to her termination, the applicant is directed to deliver to the respondents and file with the Tribunal within ten days, a Request for Order During Proceedings (RFOP) seeking to amend her Application and setting out an amended list of the remedies which she is seeking in the event that the portion of her Application is remaining is successful (“the amended remedies”). The respondents have ten days from the date that they receive the applicant’s amended remedies to deliver to the applicant and file with the Tribunal any Response or an amended Response addressing the amended remedies. The Tribunal will consider the applicant’s Request following the receipt of these submissions.
20As the respondents have not indicated that they are agreeable to mediation, the Tribunal will place this Application in the queue to be scheduled for hearing. If the respondents are now agreeable to mediation, they are directed to so advise the applicant and the Tribunal when their response to the applicant’s amended remedies is due.
21I am not seized.
Dated at Toronto, this 30th day of July, 2012.
“Signed by”
Maureen Doyle
Vice-chair