HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Manal AlSaigh

Applicant

-and-

University of Ottawa, Paul Bragg, Fraser Rubens, Thierry Mesana and Roy Masters

Respondents

DECISION

Adjudicator: Ena Chadha

Date: March 29, 2012

Citation: 2012 HRTO 655

Indexed as: AlSaigh v. University of Ottawa

WRITTEN SUBMISSIONS

Manal AlSaigh, Applicant ) Douglas Christie, Counsel

University of Ottawa, Paul Bragg, )

Fraser Rubens, Thierry Mesana and ) Karen Jensen, Counsel

Roy Masters, Respondents )

INTRODUCTION

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 11, 2010, alleging discrimination and reprisal with respect to services, goods and facilities and employment because of race, colour, ancestry, place of origin, citizenship, ethnic origin and disability. The applicant, a citizen of the Kingdom of Saudi Arabia, was training as a medical resident with the respondent University of Ottawa’s Faculty of Medicine Cardiac Surgery Program. The applicant alleges that she was subjected to harassment and discriminatory treatment while pursuing her medical education with the respondent program.

2The respondents filed a Response on October 10, 2010, denying the allegations of discrimination, harassment and reprisal.

3The applicant filed a Reply on October 27, 2010.

4By way of Interim Decision 2012 HRTO 2, the Tribunal concluded that the first part of the applicant’s narrative, entitled “Background” and describing allegations from 2003 to 2008, was untimely. The Tribunal accepted that the second portion of the applicant’s narrative, labeled “Recent Discrimination” and describing allegations from the end of December 2008 and onwards, was timely as a continuing series of events. The “Recent Discrimination” part of the Application made allegations regarding unfair terms and conditions imposed upon the applicant’s return to the program after a leave of absence, including re-commencing third year, denying admission into fourth year, requiring further remediation, exclusion from participation in academic training, denying legal representation to assist with her appeal and eventually barring her from the program while her academic appeal was pending.

5On January 12, 2012, the respondents filed a Request for an Order During Proceedings (“Request”) asking the Tribunal to dismiss the Application pursuant to section 34(11) of the Code on the basis that the applicant is pursuing a civil action in the Ontario Superior Court making the same allegations as raised in this Application. In the alternative, the respondents ask that the Tribunal defer the Application pending the completion of the civil suit and a related judicial review proceeding.

6On January 27, 2012, the applicant filed a response opposing the Request on the basis that it is premature to consider a section 34(11) dismissal of the Application because the respondents seek to strike some, or all, of the civil claim. The applicant asks that the Application be held in abeyance until the respondents’ motion to strike the civil action is determined.

7The parties subsequently exchanged additional submissions, all of which have been carefully considered by the Tribunal in reaching this decision.

DECISION

8I find that section 34(11) of the Code bars this Application from proceeding because the applicant commenced a civil suit based on the same facts and allegations and is seeking similar remedies in the civil action as sought in this Application.

Legislation

9Section 34(11) of the Code states:

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.

10Section 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.

Summary of Civil Action

11The respondents provided a copy of the applicant’s Statement of Claim (CV-11-440336) filed with the Ontario Superior Court on November 24, 2011, against the institutional respondent and all, except one, of the personal respondents as identified in the Application. In the civil suit, the applicant is a co-plaintiff with two other medical residents who have also filed applications with the Tribunal against the same institutional respondent. The civil action raises multiple claims, including breaches of fiduciary duty, breach of contract, negligence, intimidation, defamation, conspiracy to injure, denial of natural justice and misfeasance in public office.

12The Statement of Claim expressly cites section 15 of the Canadian Charter of Rights and Freedoms (“Charter”) and alleges that the respondents have engaged in “ongoing and systemic discrimination based on racial and national or ethnic origin” against the plaintiffs because of their “Arabic origin”. The Statement of Claim describes the alleged differential treatment imposed on the plaintiffs because of their race as “unwarranted criticism and disparagement”, “harsh and unreasonable performance standards”, “abuse of authority” and “harsher discipline”. The Statement of Claim provides numerous examples of alleged discrimination, harassment, undue scrutiny and excessive monitoring, as well as alleged breaches of procedural fairness in the handling of the plaintiffs’ academic affairs.

13The Statement of Claim pleads damages for loss of income, reputation, mental distress and suffering, future employment and loss of time and opportunity, including aggravated and punitive damages, legal costs and interest. In addition, the Statement of Claim seeks declarations and damages for the alleged infringement of the plaintiffs’ equality rights under the Charter. The Statement of Claim asserts that these damages flow from the respondents’ “overall corporate culture...of bullying” and “discriminatory process against medical residents of Saudi national origin and/or Arabic decent...which destroyed the careers of all three plaintiffs.”

Summary of Application

14In her Application, the applicant alleges that her medical skills were disparaged and she was excluded from learning opportunities due to negative stereotypes about her race or ethnic origin. The applicant indicates she was subjected to discriminatory treatment when she returned from a leave of absence. The applicant alleges she was required to undertake additional rotations, re-do her entire third year and was not permitted to enter into the fourth year of the program. The applicant alleges that she was denied participation in an academic session in September 2009 and that, as of December 2009, she was excluded from training pending the outcome of her academic appeal. The applicant further alleges that she was not permitted to have legal representation to assist her with respect to her appeal of the decision denying her admission into fourth year.

15The remedies sought in the Application include damages for loss of salary, legal costs incurred for the applicant’s appeal, infringement of dignity, loss of reputation, stress, anxiety and loss of health and other “undetermined damages” including loss of salary. The Application seeks declarations requiring the respondents to stop the discrimination and adhere to policies, as well as reinstatement. The Application also asks for the respondents to receive human rights education and training.

Parties’ Positions

16The respondents submit that this case fits squarely within the provisions of section 34(11) because the Application and the Statement of Claim are concurrent proceedings that raise substantially all of the same allegations and seek remedies for the same human rights violations. The respondents argue that the Tribunal does not have discretion when an application comes within the ambit of section 34(11) and that, therefore, this Application must be dismissed.

17The applicant contends that it is premature to dismiss the Application because the respondents have indicated an intention to strike the civil claim. The applicant argues that it would be unreasonable for the Tribunal to adjudicate the section 34(11) jurisdictional issue on the basis of the Statement of Claim given the respondents’ intention to challenge the scope of the claim. The applicant submits that the Statement of Claim could be significantly narrowed or struck in its entirety and that it would be unfair to dismiss the Application because in those circumstances she is left with no remedy for the alleged human rights violations.

Analysis

18Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging human rights concerns and seeking remedies for those human rights matters: Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282. The determinative question to be considered in undertaking a section 34(11) analysis is whether the civil action explicitly or implicitly raises Code-related interests and seeks remedial redress for those alleged human rights concerns: see for example, Smith v. Sears Canada, 2010 HRTO 1834, and Jarrett v. Vance, 2012 HRTO 24.

19Based on a review of Application and Statement of Claim, I find that there is striking similarity between the facts, legal issues and claims. In both proceedings, the applicant relies on the same incidents, alleges the identical type of human rights contraventions and pleads analogous remedial recompense for the violation of her human rights. There is little doubt that the civil suit’s equality right claims to freedom from discrimination based on the section 15 Charter grounds of race, national origin and ethnic origin are comparable to or a synthesis of the Code protected grounds cited in the Application, namely race, ancestry, place of origin, citizenship and ethnic origin.

20Along with the overarching allegations of a poisoned work environment which permeate both actions, I find that the applicant’s Statement of Claim makes numerous duplicative allegations of differential treatment and reprisal as asserted in the current Application. For example, the Application and Statement of Claim repeat, amongst many other similar allegations, the following alleged matters:

• The applicant was subjected to ongoing discrimination because of race and ethnic origin;

• The applicant experienced stigmatization because of perceived disability;

• There was an arbitrary and unilateral revision of the applicant’s third year contract;

• The applicant was subjected to unfair requirements, including that she re-commence her third year, undertake further remediation and was denied admission into fourth year;

• The applicant was humiliated when she was unfairly prevented from attending an academic training day in September 2009;

• In December 2009, the applicant was discriminatorily barred from continuing in the program; and

• The applicant was denied the opportunity to rely on legal assistance.

21Although the Statement of Claim does not directly cite a provision of the Code, the applicant’s human rights concerns are prominently characterized throughout the civil pleadings as differential treatment, hostile environment, intimidation, abuse of power, bullying and lack of due process. The factual and legal matrix of the civil action, which expressly includes allegations of direct discrimination, systemic discrimination, harassment and retaliation, mirrors the content of this Application. I find that the concerns of discrimination, harassment and reprisal which are raised in the Application encompass many of the same facts and allegations which are detailed in the voluminous civil pleadings.

22In addition, the Application and the Statement of Claim seek monetary compensation for similar or parallel heads of damages. Both proceedings request compensation for loss of past and future income, legal expenses, loss of dignity, loss of reputation and mental distress. Notably, both actions also seek declarations with respect to the alleged human rights infringements. As such, I find that it is of little consequence to the section 34(11) analysis that the civil suit is framed primarily in tort.

23In Beaver, supra at paras. 10-11, the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead section 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.

24Having carefully reviewed the copious materials filed as part of this Application and the civil action, it is clear that the applicant believes that her rights under the Code have been infringed and that these human rights, and the concomitant remedies, underlie the discrimination, harassment and reprisal claims asserted in the civil proceeding. The central issue is not whether the Code was explicitly referenced in the civil action, but whether the facts, legal claims and remedies raised in the civil proceeding are sufficiently distinct that they do not duplicate the facts, legal claims and remedies of the Code pplication. In the instant case, section 34(11) is triggered because the Statement of Claim asserts the same facts, infringements and remedial requests as alleged in the applicant’s Application.

25Further, I do not agree with the applicant that the prospect that all or parts of the civil claim could be struck should sway the Tribunal to retain jurisdiction and hold this Application in abeyance. The applicant’s position ignores the fact, as explained in Beaver, supra, that the Tribunal does not have jurisdiction to maintain an application when the applicant has also commenced a civil action asserting Code-related human rights and remedies.

26The Tribunal in Tsehaye v. English District Lutheran Church-Missouri Synod, 2011 HRTO 629, held that the possibility that a class action certification may not succeed did not prevent the invocation of section 34(11) to dismiss an application. As stated in Tsehaye, “[w]here the conditions for applying section 34(11) are present, it is not for the Tribunal to engage in an assessment of any defences to the civil claim, or to consider the possibility that the claim may be dismissed without a hearing on the merits.”

27Similarly, in the present case, the possibility that the respondents may move to have the Statement of Claim narrowed or struck does not invest the Tribunal with jurisdictional power to continue with the Application, even for the minimal purposes of holding the Application in abeyance. Section 34(11) is an absolute bar to jurisdiction and an application cannot be processed by the Tribunal regardless of the intentions and litigation strategies of the parties in the civil suit.

28With respect to the applicant’s argument that she would be left with no human rights redress if both the civil suit and the Application are dismissed, I note that the Divisional Court recently emphasized that even in those circumstances section 34(11) is not discretionary and bars an application from proceeding: Grogan v. Toronto District School Board, 2012 ONSC 319. The Tribunal does not have jurisdiction and, to paraphrase the Divisional Court, it does not matter that the civil action could be withdrawn or dismissed. “In short, s.34(11) requires an applicant to choose between the Tribunal and a (concurrent) civil action”: see para. 48. The Divisional Court also confirmed that the fact that the civil suit was commenced before or after the Application is immaterial to the application of section 34(11).

29I find that the Application falls within the circumstances described in section 34(11) of the Code and, therefore, the Tribunal cannot proceed because the applicant filed a civil action involving the same human rights infringements as alleged in the Application and seeking remedies for those alleged infringements. In conclusion, given that the Statement of Claim and Application rest on exactly the same facts, assert virtually identical rights and claims against the same respondents, as well as seeks similar remedies, the Tribunal has no jurisdiction over this Application. The overlap present in the civil action and this Application is exactly what section 34(11) of the Code was enacted to prevent.

CONCLUSION

30In light of my findings with respect to section 34(11), it is unnecessary for me to consider the issue of deferral. In accordance with the above-noted reasons, the Application is dismissed.