HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joanne Jarrett
Applicant
-and-
Timothy Vance
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed as: Jarrett v. Vance
INTRODUCTION
1This Decision deals with an Application filed on September 2, 2009 under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal with respect to employment on the basis of disability and sex. The applicant alleges that she was unfairly treated and dismissed when she attempted to return from short term disability leave.
2The respondent filed a Response on November 26, 2009 denying the allegations.
3The applicant filed a Reply on January 19, 2010.
4On November 26, 2010, the Tribunal issued a letter directing the parties to file submissions with respect to possible consolidation of this Application with another Applicantion filed by this applicant against another respondent regarding related circumstances.
5The respondent filed submissions on December 8, 2010, objecting to consolidation. The applicant did not file submissions.
6On August 4, 2011, the respondent filed a Request seeking that the Application be dismissed because there is an on-going civil court action with respect to the applicant’s alleged wrongful dismissal of her employment. The respondent provided various supporting documentation, including a copy of the applicant’s Statement of Claim against the respondent, the respondent’s Statement of Defence, the applicant’s List of Proposed Witnesses, etc. The respondent submits that the Application should be dismissed because of the duplicity of actions.
7The applicant did not file submissions in response to the respondent’s Request to dismiss and the time for doing so has elapsed.
ANALYSIS
8I find that section 34(11) bars this Application from proceeding because the applicant commenced a civil suit based on the same facts and allegations and seeking similar remedies. Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
9Section 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.
10In her Application, the applicant alleges that she was dismissed because she raised concerns regarding the respondent’s alleged inappropriate comments when she attempted to resume work after a short term disability leave. The applicant alleges that the respondent did not have alternate work available for her suitable to her disability. The applicant alleges the respondent discriminated against her because other employees returning from extended leaves of absence have been allowed to resume work. The applicant further alleges that she was treated differently compared to male employees. In her Application, the applicant seeks damages for lost wages, interest, and damages for emotional distress and loss of loss of dignity.
11The applicant’s Statement of Claim is dated August 31, 2010. In her Statement of Claim, the applicant alleges that the respondent wrongfully terminated her employment upon her return from a short term disability leave. The Statement of Claim indicates that the applicant believes that she was dismissed because she expressed her concerns regarding the respondent’s alleged inappropriate remarks. The Statement of Claim further alleges that, unlike male employees, the applicant’s driving record was accident and complaint free. The Statement of Claim notes that the respondent was aware that the applicant could not do other work because of her “health (disability) issues.” In the civil action, the applicant seeks damages for the wrongful termination and loss of income and general damages for the respondent’s demeaning treatment.
12Based on a review of Application, it appears that the applicant relies on the identical facts, alleges that the same types of employment-related disability and gender rights have been violated, and seeks similar remedies as set out in the Statement of Claim.
13Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Smith v. Sears Canada, 2010 HRTO 1834, the Tribunal explained the analysis to be considered for section34(11) as follows:
The determinative question remains whether the applicant did, whether explicitly or implicitly, raise the Code and seek remedies for alleged breaches by way of the civil proceeding. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section34(11). If not, however, then the factual similarity between the two proceedings is not sufficient to dislodge the Tribunal’s jurisdiction over a matter that is otherwise properly brought before it.
14In 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 preclude jurisdiction:
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.
15In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, the Tribunal stated 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.
16I am satisfied that the applicant’s Statement of Claim and this Application are based on the same facts and that both assert the same type of allegations, as well as seek similar remedies. In fact, the applicant’s narrative in both the Application and the Statement of Claim are virtually identical. While the Statement of Claim makes no explicit reference to the Code, it is clear that the applicant’s allegations concern the same events that are alleged to constitute discrimination and reprisal in the Application and that both assert the same rights with respect to unfair dismissal and failure to provide work.
17If an application falls within the circumstances described in section 34(11) of the Code, the Tribunal is precluded from proceeding with the application because the language in section 34(11) is a mandatory bar. Given that the Statement of Claim and Application both make claims with respect to disability discrimination, unfair treatment, wrongful dismissal and failure to return to work, as well as seek similar remedies, the Tribunal has no jurisdiction over this Application. The overlap present in the civil proceeding and this Application is exactly what section 34(11) of the Code was intended to prevent.
18In light of my findings with respect to section34(11), it is unnecessary for me to consider the issue of consolidation.
19Accordingly, the Application is dismissed.
Dated at Toronto this 5th day of January, 2012.
”signed by”______________
Ena Chadha
Vice-chair