HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Printha Pathmanathan
Applicant
-and-
Jamac Sales Limited and Don McBride
Respondents
decision
Adjudicator: Douglas Sanderson
Indexed as: Pathmanathan v. Jamac Sales Limited
wRITTEN SUBMISSIONS
Jamac Sales Limited and ) Peter Staszynski, Counsel
Don McBride, Respondents )
1This is an Application filed on August 16, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), in which the applicant alleges discrimination in employment on the grounds of race, colour, ethnic origin, and sex (pregnancy).
2The respondents have filed a response to the Application in which they seek early dismissal under section 34(11) of the Code, on the basis that the Application is barred by a civil proceeding. The applicant did not respond to the Request to Dismiss.
BACKGROUND
3The applicant self-identifies as a woman of Sri Lankan ethnic origin formerly employed by the respondent company. The allegations of discrimination and harassment include such matters as:
permanently replacing her while she was on maternity and parental leave;
making unwarranted changes in her job duties after she returned from leave, not applied to others in similar positions;
subjecting her to unfair criticism of her performance;
creating a poisoned work atmosphere for her; and,
wrongly terminating her employment.
4By Statement of Claim dated December 31, 2010, the applicant also commenced a civil action against the respondents.
REQUEST TO DISMISS
5The Request to Dismiss is based on section 34(11) of the Code, which reads as follows:
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
6In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at para. 6, the Tribunal described the operation of s. 34(11) 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.
7In 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 apply:
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.
8In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109, the Tribunal found that section 34(11) applied whether the civil action was commenced before or after an application to the Tribunal. In Grogan v. Toronto District School Board, 2012 ONSC 319, the Divisional Court upheld a matter similarly decided by the Tribunal (see Grogan v. Toronto District School Board, 2011 HRTO 954).
9In this case, the Statement of Claim states that it seeks a declaration that the personal respondent breached the applicant's employment contract by, amongst other things:
creating a hostile and poisoned work environment for the applicant;
creating a discriminatory work environment, and discrimination on the basis of race, sex and pregnancy against the applicant; and,
failing to comply with the Code.
10Against both respondents, the Statement of Claim also seeks damages, again amongst other things, arising from harassment and intentional or negligent infliction of mental suffering and aggravated damages. The Statement of Claim also states that the applicant specifically relies on the Code.
[11] The Statement of Claim describes the applicant's interactions with the individual respondent, referring to the same incidents of discriminatory treatment and harassment referenced in the Application and listed above. The Statement of Claim includes the following pleading: "The Plaintiff plead (sic) and (sic) fact is that her termination has been effected due to reasons which are contrary to the Ontario Human Rights Legislation in effect, such as race?(sic) sex and pregnancy etc."
12The Statement of Claim specifically cites the Code, but does not refer to section 46.1 of the Code. Nonetheless, it is clear that the Statement of Claim alleges discrimination and harassment by the respondents and seeks damages arising out of that conduct. The allegations in the Statement of Claim against the respondents are based on the same assertions of discrimination and harassment of the applicant, as those made in the Application.
[13] In the result, I find that applicant's civil claim seeks remedies with respect to infringement of her rights under the Code. Accordingly, section 34(11) applies to bar this Application and it is dismissed.
Dated at Toronto, this 28th day of February, 2012.
"Signed by"
Douglas Sanderson
Vice-chair