Lavoie v. Ryder Truck Rental Canada Ltd., 2013 HRTO 1851

Human Rights Tribunal of Ontario

B E T W E E N:

Justin Lavoie

Applicant

-and-

Ryder Truck Rental Canada Ltd.

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: November 4, 2013

Citation: 2013 HRTO 1851

Indexed as: Lavoie v. Ryder Truck Rental Canada Ltd.

APPEARANCES

Justin Lavoie, Applicant

John Brennan, Counsel

Ryder Truck Rental Canada Ltd., Respondent

Andrew Bratt, Counsel

1The applicant filed this Application on March 26, 2013, under section 34 of Part IV of the 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.

2In the Form 2 Response, the respondent included a Request to dismiss this Application on the basis that there is an on-going Superior Court proceeding arising out of the same facts in which the applicant is seeking an order under section 46.1.

3The applicant filed a Reply to the Request raising the possibility of deferral. The respondent wrote further to the applicant's Reply arguing that the Tribunal is without jurisdiction to consider deferral in these circumstances. Those submissions were quickly followed by letters from both parties dated June 12, 2013 regarding the potential for amendments to the civil action.

4I requested a conference call with the parties to hear oral submissions on the issues set out their written materials. The call took place on November 1, 2013.

DECISION

5I find that section 34(11) bars this Application from proceeding because the applicant commenced a civil suit based on the same facts and allegations and seeking similar remedies. Section 34(11) of the Code 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

6Section 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.

7The applicant concedes that the statement of claim relates to the same facts which are alleged in the Application. He also concedes that he is seeking monetary compensation pursuant to the Code. Section 46 is explicitly referenced in the statement of claim. The applicant initially opposed the Request to dismiss on the basis that the respondent had not yet filed a statement of defence and that a decision may eventually be made to amend the claim to remove the request for Code-related compensation. For those reasons, the applicant initially suggested that the Application be deferred rather than dismissed at this stage.

8As of the date of the conference call, the respondent had filed a statement of defence in the civil action and pleadings are now closed. The respondent has not received a copy of an amended statement of claim from the applicant, although the applicant is still considering that possibility.

9Section 34(11) is a jurisdictional question for the Tribunal. The section is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Smith v. Sears Canada, 2010 HRTO 1834, the Tribunal explained the analysis to be considered for section 34(11) as follows:

The determinative question remains whether the applicant did, whether explicitly or implicitly, raise the Code and seek remedies for alleged breaches by way of the civil proceeding. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section 34(11). If not, however, then the factual similarity between the two proceedings is not sufficient to dislodge the Tribunal's jurisdiction over a matter that is otherwise properly brought before it.

10In 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.

11I am satisfied that the Application falls within the circumstances described in section 34(11) of the Code. The Tribunal is precluded from proceeding with the Application because the language in section 34(11) is a mandatory bar. The overlap present in the civil proceeding and this Application is exactly what section 34(11) of the Code was intended to prevent. Given this determination, the Tribunal has no jurisdiction to defer the Application.

12Accordingly, the Application is dismissed.