Mark Moreland v. St. Michael’s Hospital, 2012 HRTO 2262

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Moreland

Applicant

-and-

St. Michael’s Hospital

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 3, 2012

Citation: 2012 HRTO 2262

Indexed as: Moreland v. St. Michael’s Hospital

WRITTEN SUBMISSIONS

Mark Moreland, Applicant

Daniel Lublin, Counsel

Introduction

1This is an Application filed on September 25, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability and reprisal which culminated in the termination of the applicant’s employment. The Application also indicates that the applicant has undertaken a civil court action against the respondent. Attached to the Application is a copy of the applicant’s Statement of Claim dated August 30, 2012, in which he seeks damages from the respondent for wrongful dismissal.

2The Application has not been served on the respondent. On October 26, 2012, the Tribunal issued a Notice of Intent to Dismiss to the applicant on the basis that the Application appeared to be outside the Tribunal’s jurisdiction. The jurisdictional issue is whether the Application is barred from proceeding pursuant to s. 34(11) of the Code.

3On November 15, 2012, the applicant provided submissions in response to the Tribunal’s Notice The applicant submits that the Application should proceed because the applicant’s civil court action is for wrongful dismissal only, and does not seek damages for an alleged breach of the Code.

ANALYSIS AND DECISION

4Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

Section 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.

5In Beaver v. Dr. Hans Epp Dentistry Professional Corp., 2008 HRTO 282, the Tribunal explained the significance 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.

6The issue to be determined is whether the applicant has decided to seek remedies for alleged breaches of the Code by means of a court action.

7I am satisfied, based on a review of the Application and the Statement of Claim that the applicant has not raised allegations of discrimination pursuant to the Code or asked for remedies for a breach of his Code rights in his civil court action. The Statement of Claim arises from the applicant’s termination which is the focus of the Application’s allegations. However, as noted in Baker v. Sears Canada, 2009 HRTO 1014, the duplication of legal proceedings arising out of the same facts is not a basis for declining jurisdiction over an Application. Moreover, as further noted in Baker, supra, the fact that a civil proceeding could potentially have been commenced alleging both wrongful dismissal and discrimination is a matter of personal choice. It is not within the Tribunal’s jurisdiction or mandate to instruct parties where to bring their cases. The Tribunal’s function is to determine whether it has the jurisdiction to accept the Application as filed.

8I am satisfied that the Application is not barred by s. 34(11) and therefore the Tribunal has the jurisdiction to consider the Application. Accordingly, the Application will proceed and will be served on the respondent.

9I am not seized of this matter.