HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Trudel

Applicant

-and-

Marwood Ltd. and David Harris

Respondents

DECISION

Adjudicator: Ena Chadha

Date: September 17, 2013

Citation: 2013 HRTO 1564

Indexed as: Trudel v. Marwood Ltd.

WRITTEN SUBMISSIONS

Brian Trudel, Applicant ) Thomas Gorksy, Counsel

1The applicant filed this Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on June 28, 2013, alleging discrimination and reprisal with respect to employment on the basis of disability.

2In the Application, the applicant notes that he has an on-going court action against the respondents based on the same facts as alleged in the Application and that in the court action he has asked for a remedy based on the alleged discrimination. The applicant provided a copy of his Statement of Claim, dated July 27, 2012, filed with the Ontario Superior Court of Justice.

3On August 7, 2013, the Tribunal issued a Notice of Intent to Dismiss stating that it appeared the Application may be outside of the Tribunal’s jurisdiction pursuant to section 34(11) of the Code because a civil proceeding has been commenced seeking an order under the Code.

4The applicant filed submissions in response to the Notice. The applicant opposes dismissal. The applicant argues that it would be unfair to dismiss the Application because the respondents have moved to strike his civil case on the basis of section 46.1 of the Code. The applicant submits that if the Tribunal dismisses this Application and if the respondents are also successful in challenging the civil action, then he will be left with no redress for his human rights claims. The applicant asks that the Tribunal defer the Application pending the completion of the civil suit to avoid any duplicative proceedings.

DECISION

5I find that section 34(11) of the Code bars this Application from proceeding because the applicant commenced a civil suit against the same respondents based on the same facts and allegations and is seeking similar remedies in the civil action as sought in this Application.

6Section 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.

7Section 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.

8The 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.

9The applicant provided copies of the Statement of Claim and Statement of Defence as filed by the parties with the Ontario Superior Court in July and August 2012. The applicant’s civil action raises multiple claims, such as breach of contract and wrongful dismissal, as well as pleading various violations of the Code, including unlawful discrimination, failure to accommodate and reprisal. The Statement of Claim expressly cites the Code and provides numerous examples of the alleged unfair treatment. The Statement of Defence denies the allegations of discrimination and asserts that the defendants/respondents took appropriate steps to attempt to accommodate the plaintiff/applicant. The defendants/respondents assert that they had no choice but to terminate the employment relationship because the plaintiff/applicant ceased participating in the accommodation process.

10The applicant appears to be arguing that it would be unfair to dismiss the Application under section 34(11) because the respondents seeks to strike some, or all, of the civil claim. The applicant contends that, if the Tribunal dismisses this Application and if the respondents are also successful in persuading the Court that there are no actionable civil claims, the applicant may find himself without any redress for the alleged human rights infringements. The applicant asks that the Application be deferred until the civil action is determined.

11I find this case fits squarely within the provisions of section 34(11) because the Application and the civil suit are concurrent proceedings that raise substantially all of the same allegations and seek remedies for the same human rights violations. The Tribunal does not have discretion to take jurisdiction of an application when the application comes within the ambit of section 34(11) and, therefore, the Application must be dismissed.

12Based on a review of Application and the civil pleadings, there is no doubt about the 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 his human rights. In 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 remuneration resulting from the alleged discrimination. Notably, both actions also seek general damages for the loss of dignity flowing from the alleged discrimination. In sum, I find that the concerns of discrimination, accommodation and reprisal and the remedies claimed in this Application are clearly mirrored in the civil pleadings.

13In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the purpose of s. 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.

14I do not agree with the applicant that the prospect that all or some of the civil claim could be struck is a basis for the Tribunal to retain jurisdiction over the Application. The applicant’s position cannot be reconciled with the statutory restriction, 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.

15I appreciate that the applicant’s civil suit may be narrowed or struck in its entirety. However, as stated in Beaver, supra, section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging similar human rights concerns and seeking remedies for those human rights matters. Section 34(11) does not imbue the Tribunal with discretion to evaluate the merits of the parties’ arguments or machinations as made out in their civil pleadings.

16The 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, supra, “[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.”

17Similarly, in the present case, the possibility that the respondents may be successful in having the applicant’s civil claims limited 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 deferral. 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: Al-Ghaithy v. University of Ottawa, 2012 HRTO 654.

18With respect to the applicant’s argument that he would be left with no human rights redress if both the civil suit and the Application are dismissed, the Divisional Court has 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).

19I find that the Application falls within the circumstances described in section 34(11) of the Code and, therefore, the Tribunal cannot proceed with the Application. Accordingly, the Application is dismissed.