Michael Joseph LeBlanc v. Toronto Transit Commission, 2012 HRTO 673

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Joseph LeBlanc Applicant

-and-

Toronto Transit Commission Respondent

DECISION

Adjudicator: Douglas Sanderson Date: April 2, 2012 Citation: 2012 HRTO 673 Indexed as: LeBlanc v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Toronto Transit Commission, Respondent — Steve Lavender, Counsel

1This is an Application filed on December 7, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability.

BACKGROUND

2The hearing of this matter commenced on September 28, 2011, and was scheduled to continue on April 4, 2012. On March 15, 2012, the respondent filed a Request for Order during Proceeding seeking dismissal of the Application, pursuant to section 34(11) of the Code because the applicant brought a civil action which raises the same issues as those raised in the Application, relies on virtually the same facts and in substance seeks a remedy for an alleged infringement of the Code. The applicant has not filed a response to the Request and the deadline for doing so has expired.

DECISION

3The respondent argues that section 34(11) of the Code bars this Application from proceeding because the applicant has commenced a civil suit based on the same facts and allegations, in which the applicant seeks similar remedies. Section 34(11) 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

4Section 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 his Application, the applicant alleges that the respondent terminated his employment for absenteeism related to chronic migraines and was accused of misrepresenting the reasons for his absences and his ability to work. The applicant testified that the respondent ignored requests for accommodation regarding his migraine headaches. The applicant also gave evidence to explain his actions while under surveillance (which led to the termination of his employment) by the respondent. The applicant seeks general damages for loss of dignity and pain and suffering, reinstatement and non-monetary remedies.

6The applicant commenced the civil action, in court, against the respondent on December 1, 2011. The Statement of Claim consists of only two paragraphs and claimed damages for breach of contract and wrongful dismissal. The Statement of Claim was not served on the respondent. On or about February 15, 2012, the applicant amended the Statement of Claim and served the Amended Statement of Claim on the respondent on March 2, 2012. The Amended Claim adds significantly to the original Statement of Claim. The Amended Claim states that the applicant suffers from chronic migraines and sleep apnea and that the respondent refused his requests for accommodation related to migraine headaches. The Amended Claim states that the respondent wrongfully dismissed him after conducting surveillance of him while absent from work because of his migraines. The Amended Claim further alleges the respondent terminated his employment without allowing him the opportunity to substantiate his absences with medical documentation. The applicant seeks damages for failing to accommodate his disability, the termination of his employment and the loss of integrity and pain and suffering he experienced as a result.

7Based on a review of both the Application and the Statement of Claim, it appears that the applicant relies on the same facts as alleged in his civil suit as in his Application. The applicant seeks damages for pain and suffering and hurt feelings in both claims.

8The purpose of section 34(11) is to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paragraphs. 10-11, the Tribunal concluded that a claim need not specifically plead section 46.1 of the Code for section 34(11) 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.

9In 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.

10I am satisfied that the applicant’s Amended Statement of Claim and this Application are based on the same facts, and that both assert human rights allegations and seek human rights remedies. While the Amended Statement of Claim does not refer explicitly to the Code, it is clear that the applicant’s allegations concern the same events that are alleged to constitute discrimination in the Application. The applicant seeks damages in both venues.

11The Tribunal has held that s.34(11) extends to civil proceedings commenced after the filing of an Application with the Tribunal. This approach was recently upheld by the Divisional Court as reasonable and rationally supportable: Grogan v. Ontario Human Rights Tribunal, released February 10, 2012 (unreported).

12If an application falls within the circumstances described in section 34(11) the Tribunal may not proceed with the application because the language in section 34(11) is a mandatory bar. Given that the Statement of Claim and Application both assert human rights allegations and seek human rights damages, the Tribunal has no jurisdiction over this Application. The overlap present in the civil proceeding and the Application is exactly what section 34(11) was intended to prevent.

13Accordingly, the Application is dismissed.