HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sylvia Morten
Applicant
-and-
Haydon Youth Services Inc. and Center for Rational Learning Inc.
Respondents
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Morten v. Haydon Youth Services Inc.
APPEARANCES
Sylvia Morten, Applicant
Bhavin Bilimoria, Counsel
Haydon Youth Services Inc. and Center for Rational Learning Inc., Respondents
Don Pazaratz, Representative
Introduction
1This is an Application filed on November 14, 2011, 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 on the basis of disability. The applicant alleges that one of the reasons for which the respondents terminated her employment was because of her disability.
2This Interim Decision addresses the respondents’ Request for Order During Proceedings filed on November 22, 2012 (“the RFOP”) that seeks the dismissal or the deferral of the Application. The respondents submit that the facts and/or issues in the Application are the same as in the applicant’s Statement of Claim, filed at the Ontario Superior Court of Justice and issued on January 24, 2012. The applicant’s submissions in her Response to the RFOP argue that the facts and issues involved in the Court matter are completely different.
3This Interim Decision also deals with the respondents’ request in the RFOP for the applicant’s medical records.
REQUEST TO DISMISS OR DEFER
4The respondents’ request to dismiss appears to be based on section 34(11) of the Code, which provides that:
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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:
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.
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 Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the following principles applicable to the interpretation 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.
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.
7Section 34(11) bars an application from proceeding in a situation where the applicant has commenced a civil suit based on the same facts and is seeking similar remedies for the alleged human rights violations. In reviewing the Statement of Claim, I am satisfied that the Court proceeding is a negligence claim triggered by the applicant’s slip on snow and ice on the respondents’ property. There do not appear to be any facts in the Court proceeding that overlap with the facts in the Application.
8I therefore find that the Court proceeding does not come within the provisions of section 34(11) of the Code. The Statement of Claim does not make allegations of human rights infringements or reference any human rights concerns, nor does it appear to seek remedies for any such alleged infringements. As such, the two proceedings do not contain overlapping claims related to the Code, and I dismiss the respondents’ request to dismiss the Application for that reason.
9I note that the Application, as amended, seeks $22,446.67 for lost income, calculated on the basis of seven months’ pay for termination without notice, and $1,200 for unpaid wages in addition to general damages for the alleged infringement of the Code. The Statement of Claim appears to seek a remedy for “the loss of past, present and future income.” The Tribunal therefore makes this Interim Decision without prejudice to the respondents’ right to argue that certain losses of income and/or wages have been remedied in the Court proceeding and should not be awarded by the Tribunal.
REQUEST TO DEFER
10Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, at the request of a party or on its own initiative, defer consideration of an application.
11Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
12In this case, at this stage, the facts, issues and remedies sought in the Court proceeding are not similar to those sought in the Application. I therefore do not find it appropriate to defer consideration of this Application pending the conclusion of the Court proceeding.
REQUEST FOR MEDICAL RECORDS
13The applicant provided submissions opposing the respondents’ request of the applicant’s medical records because the Notice of Hearing has not yet been issued, and therefore she need not comply with Rule 16 which lays out the timing of disclosure of arguably relevant documents.
14I accept the applicant’s argument that the request for the production of medical records is premature, given that the Notice of Hearing has not yet been issued and that the parties’ disclosure obligations under the Rules have not yet been triggered. For this reason, the request for medical records is denied at this stage of the proceeding. It is not, at this point, necessary for me to determine whether the documents sought are arguably relevant to the proceedings.
ORDER
15The respondents’ RFOP is denied.
16The respondents’ representative has recently filed a letter replying to the applicant’s Response to the respondents’ RFOP. The respondents’ representative disputes certain facts alleged by the applicant in her Response to the RFOP, and indicates that he intends to reply further to the applicant’s response to his submissions attached to the RFOP. Further submissions on the RFOP are not required at this time. Should the facts and issues in the Court proceeding change, then the respondents may renew their request to have the Application dismissed or deferred.
17The Tribunal shall proceed to schedule a hearing.
18I am not seized of this matter.
Dated at Toronto, this 14th day of December, 2012.
“Signed by”
Mary Truemner
Vice-chair