Davinder Bhatia v. Parmalat Canada Inc., 2013 HRTO 2

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Davinder Bhatia Applicant

-and-

Parmalat Canada Inc. Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: January 2, 2013 Citation: 2013 HRTO 2 Indexed as: Bhatia v. Parmalat Canada Inc.

WRITTEN SUBMISSIONS

Davinder Bhatia, Applicant Self-represented

Parmalat Canada Inc., Respondent Ian Campbell, Counsel

Introduction

1This Decision addresses the issue of whether this Application should be dismissed as outside the Tribunal’s jurisdiction pursuant to s. 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment because of disability. The applicant has also commenced civil proceedings against the respondent in the Ontario Superior Court of Justice.

REQUEST TO DISMISS

2Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

3In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at para. 6, the Tribunal described the operation of s. 34(11) 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.

4In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paras. 10-11, the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section 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.

5As stated in McMuldroch v. Honda of Canada Manufacturing, 2009 HRTO 2007 at para. 11:

The Legislature by the enactment of section 34(11) requires that applicants make a choice of forum when bringing complaints that their rights under the Code have been violated. The continued processing of this Application directly engages the policy concerns underlying the section – the dangers of inconsistent findings of fact and the waste of public as well as private resources consequent to duplicative litigation.

6In the Application, the applicant alleged that the respondent discriminated against him on the basis of disability. He claimed that the respondent harassed him, failed to accommodate his disability-related needs and terminated him while he was on disability leave. He also alleged that the respondent refused to increase his job grade with the company when the grades of other employees were increased. He alleged that the company terminated him three weeks before he would have been entitled to his annual bonus. Finally, he alleged that the respondent discriminated against him by refusing to consider him for new positions within the company. As remedies, the applicant sought monetary compensation of $20,000 which he stated was equivalent to approximately five months’ salary, medical coverage until he is re-employed and public interest remedies relating to the respondent’s human rights policies and procedures.

7The applicant also has commenced a civil action against the respondent in small claims court. In his Plaintiff’s Claim, he stated that the respondent terminated him while he was off on disability leave. The Claim does not provide much detail regarding the basis of the applicant’s claim. However, the Claim does state that the applicant’s situation is detailed in a demand letter that his legal counsel sent to the respondent. The applicant attached the demand letter to his Claim. In the demand letter, the applicant’s counsel refers, among other things, to the respondent’s alleged harassment and failure to accommodate the applicant as required by the Code. In his Claim, the applicant sought $23,900 in damages to cover four months of salary and the bonus that the applicant claims he would have been entitled to if he had not been terminated.

8In its Response, the respondent sought early dismissal under section 34(11) of the Code, on the basis that the Application is barred by the civil proceeding commenced by the applicant. The respondent submitted that the material facts and issues in dispute in the civil action are essentially the same as those raised in the Application.

9The applicant filed a Form 11 Response claiming that his Application should not be dismissed because it raises issues that are distinct from the civil action. The applicant claimed that his Application challenged his allegedly harsh and inhumane treatment by the respondent. He claimed that, by contrast, his civil action raises several other issues relating to his employment with the respondent. However, among the allegedly distinct issues he claimed are covered by the civil action, he listed “discrimination while increasing my grade and consequential increase in salary of similar employees doing the same profile”. He also listed the respondent’s failure to consider him for open positions, an issue raised in his Application.

10In light of the above, I find that the applicant has raised substantially the same facts and issues in his civil Claim and in his Application, and sought almost the same monetary relief in both claims. Although the civil Claim does not specifically cite the Code, it does attach and rely upon the applicant’s demand letter which does specifically refer to alleged violations of the Code. As a result, I find that the continued processing of this Application would directly engage the policy concerns underlying section 34(11) of the Code – that is, the risk of inconsistent findings of fact and the waste of public as well as private resources arising from duplicative litigation.

11For these reasons, I find that the Application is barred by s. 34(11) of the Code. The Application is therefore dismissed.