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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Celito Bukasa
Applicant
-and-
Franklin Templeton Investments Corp.
Respondent
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INTERIM decision
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Adjudicator: Ena Chadha
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Date: July 3, 2013
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Citation: [2012 HRTO 1151](https://www.minicounsel.ca/hrto/2012/1151)
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Indexed as: Bukasa v. Franklin Templeton Investments Corp.
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WRITTEN SUBMISSIONS
Celito Bukasa, Applicant
Marvin Gorodensky, Counsel
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[1] The applicant filed this Application on April 15, 2013, under section 34 of the Ontario 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.
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[2] The applicant alleges that the respondent employer discriminated against him when it issued a warning letter referencing his non-culpable absences and gave him a negative performance review after his return from disability leave. The applicant alleges that the negative review was as a result of his disablement and that his employment was terminated because of his disability.
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[3] The applicant provided the Tribunal with a copy of a Statement of Claim, dated February 7, 2013, filed with the Ontario Superior Court of Justice against the respondent, claiming wrongful dismissal and breach of contract.
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[4] On June 3, 2013, the Tribunal issued to the applicant a Notice of Intent to Dismiss (“NOID”) indicating that it appeared that, pursuant to section 34(11) of the Code, the Application is outside of the Tribunal’s jurisdiction because the applicant commenced a civil action based on the same facts and remedies as sought in the Application.
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[5] The applicant filed submissions on June 12, 2013 opposing the dismissal. The applicant asserts that the Statement of Claim seeks relief independent of any alleged discrimination. In the alternative, the applicant asks that the Application be stayed so that the civil claim can be amended.
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DECISION
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[6] Section 34(11) bars an application from proceeding in a situation where the applicant has commenced a civil suit based on the same facts and seeking similar remedies for the alleged human rights violations. Section 34(11) of the Code states 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.
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[5] Section 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.
# [7] In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, [2008 HRTO 282](https://www.minicounsel.ca/hrto/2008/282), 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.
# [8] Having compared the Application and the Statement of Claim, I find that, while both claims rely on the same underlying facts, the applicant does not seek the same remedies in the Application as sought in the civil action and, therefore, the two proceedings are not sufficiently duplicative to come within the ambit of section 34(11).
# [9] In the present case, the Statement of Claim makes no mention of any alleged human rights infringements, nor seeks remedies predicated on any such alleged violations. The Statement of Claim seeks damages for wrongful dismissal, unpaid bonus and breach of contract. I am satisfied, based on a review of the Application and the Statement of Claim that the applicant has not raised allegations of discrimination pursuant to the Code, nor asked for remedies for a breach of his Code rights in his civil court action.
# [10] As stated in Taylor v. Fastenal Canada Ltd., [2012 HRTO 1067](https://www.minicounsel.ca/hrto/2012/1067) at para. [10](https://www.minicounsel.ca/hrto/2012/1067):
# The fact that the Application is based on the same factual chronology as alleged in the civil action is not sufficient to bar the Application under section 34(11). If the alleged violations and legal theories asserted in the two proceedings are distinct and the remedial claims do not intersect, a mere overlap in factual background does not trigger section 34(11) of the
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