Duhaime-Smith v. The Mohawk Motel Canada, 2012 HRTO 1919

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracie Duhaime-Smith Applicant

-and-

The Mohawk Motel Canada Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: October 9, 2012 Citation: 2012 HRTO 1919 Indexed as: Duhaime-Smith v. The Mohawk Motel Canada

WRITTEN SUBMISSIONS

Tracie Duhaime-Smith, Applicant Bay Riley, Counsel

The Mohawk Motel Canada, Respondent Alan Arkilander, Counsel

Introduction

1This is an Application filed on May 3, 2012, 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 disability.

2On August 12, 2012, the respondent filed a request for dismissal without a full response, alleging that a claim based on the same facts has been filed in civil court, requesting a remedy based on the alleged human rights violation. The respondent filed a copy of a Statement of Claim in the Ontario Superior Court of Justice filed on January 26, 2011.

3The applicant filed a written response to the request for dismissal.

4Section 34(11) of the Code provides, in part:

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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn.

5I have reviewed the Application, the Statement of Claim, and the materials filed by the parties. I am satisfied that the civil action is a claim specifically for breach of contract. There is no specific claim that the applicant’s rights under the Code were infringed and no remedy is sought for an alleged breach of the Code. The applicant acknowledges that her civil action includes a claim for eight months lost wages under the contract. She states that she is willing to undertake to amend her Application to exclude that claim.

6The Tribunal has found s. 34(11) not to apply to bar applications due to ongoing civil actions when the civil actions did not seek remedies for alleged breaches of the Code. See Baker v. Sears Canada, 2009 HRTO 1014, Roy v. Wal-Mart Canada, 2010 HRTO 64 and Ivey v. Millard Refrigerated Services, 2009 HRTO 1065, 2009 HRTO 1065. In this case the applicant’s civil action does not allege or seek remedies for breach of the Code. In the circumstances of this case, s. 34 (11) of the Code is not engaged.

7The applicant need not amend her Application at this point, since, even if she were to proceed to a hearing with a finding that the Code was infringed, she would not be entitled double recovery under any compensatory order made by the Tribunal.

8The applicant has indicated that she would be willing to attempt mediation, and if the respondent is also willing to mediate, the Registrar will set a date for mediation.

ORDER

9The respondent’s Request is dismissed.

10The respondent is ordered to provide a full Response within thirty days of the date of this Interim Decision.

11I am not seized of this matter.