Armstrong v. Nicholson Legal Services, 2013 HRTO 2012

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allison Armstrong

Applicant

-and-

Nicholson Legal Services and Glynis Nicholson

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: December 5, 2013

Citation: 2013 HRTO 2012

Indexed As: Armstrong v. Nicholson Legal Services

WRITTEN SUBMISSIONS

Allison Armstrong, Applicant

Self-represented

Nicholson Legal Services and Glynis Nicholson, Respondent

Glynis Nicholson, Representative

INTRODUCTION

1By application dated July 16, 2013, the applicant alleged that the respondents discriminated against her because of marital status and association with a person identified by a ground protected under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). She also alleged that the respondents reprised against her contrary to the Code. The applicant makes two sets of allegations in her Application:

a. She alleges that the personal respondent made abusive comments toward her in faxes on May 10-12, 2013 and that these comments constitute harassment under the Code.

b. She alleges that the personal respondent harassed her contrary to the Code by posting certain comments on her Facebook page.

2The respondents have requested that the Tribunal dismiss the Application pursuant to s. 34(11) of the Code on the basis that the applicant has commenced a civil proceeding against the personal respondent (“Request to Dismiss”). In her Statement of Claim the applicant claims unpaid amounts for services rendered, damages for copyright infringement and damages for injury to reputation by defamation.

3The applicant filed a Response to the Request to Dismiss. In her Response, the applicant submitted that there is only a partial overlap of facts and issues between the Application and her Statement of Claim. She acknowledges that the majority of the Application is based on the allegedly abusive fax communications which are also raised in her Statement of Claim in the section on defamation. However, she notes that her allegations regarding the Facebook post are not included in her civil claim. The applicant also submits that her Application should not be dismissed as she has not claimed damages for a violation of the Code in her civil claim.

REQUEST TO DISMISS UNDER S.34(11)

4Section 34(11) of the Code bars a person from making an Application to the Tribunal if a civil proceeding has been commenced seeking a remedy in respect of the alleged Code infringement.

34.(11) 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.

5In this case, the applicant has commenced a civil claim against the personal respondent based on many of the same facts as the Application. However, the civil claim does not allege that the personal respondent infringed the applicants’ rights under the Code, nor does the civil action seek a remedy in respect of the alleged Code infringements upon which the human rights Application is based. On the contrary, the civil action alleges that the personal respondent breached a contract with the applicant, that she infringed copyright and defamed the applicant. The remedies sought in the civil action relate to each of these causes of action.

6In order for an Application to be barred by s. 34(11), the civil claim must seek a remedy for the alleged infringement of the applicant’s rights under Part I of the Code. This is because, according to the wording in s. 34(11)(a) of the Code, a person’s right to file an Application with the Tribunal under s. 34 of the Code is barred only where s/he has filed a civil claim seeking a remedy “with respect to the alleged infringement” of his/her rights under the Code. The mere fact that the civil claim and the Application arise out of the same factual circumstances is not a sufficient basis upon which to conclude that an Application is barred under s. 34(11). See Baghdasserians v. 674469 Ontario, 2008 HRTO 404; Moreland v. St. Michael’s Hospital, 2012 HRTO 2262; Roycroft v. Premier Salons Ltd., 2013 HRTO.

7The civil proceeding commenced by the applicant against the personal respondent does not allege that the personal respondent infringed the applicants’ rights under the Code or seek a remedy, explicitly or implicitly, in respect of such alleged infringement. Accordingly, the Application is not barred pursuant to s. 34(11) of the Code. The Request to Dismiss is therefore denied.

8However, having reviewed the materials, it appears that it may be appropriate for the Tribunal to defer consideration of the Application, pending completion of the civil proceeding.

DEFERRAL

9Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, or at the request of any party. Deferral of an Application seeks to ensure that proceedings dealing with the same subject-matter do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

10The Tribunal has deferred applications where parallel proceedings raise similar facts and issues. In such cases, the Tribunal has noted that concurrent proceedings not only increase the burden on the parties, they raise the possibility of inconsistent findings of fact and law. See, for example, Tsehaye v. English District Lutheran Church-Missouri Synod, 2010 HRTO 1396

11The parties are directed to file written submissions with the Tribunal on whether it is appropriate to defer the Application pending the completion of the civil proceeding in this case.

ORDERS

12For the reasons set out above, the Tribunal orders:

a. The respondents’ Request to Dismiss pursuant to s. 34(11) of the Code is denied.

b. The applicant shall provide the Tribunal and the respondents with her written submissions on whether the Application should be deferred pending the completion of the civil proceeding. She shall do so within 14 days of the date of this Interim Decision.

c. The respondents shall provide to the Tribunal and the applicant written submissions on whether the Application should be deferred. They shall do so within 14 days of receiving the applicants’ submissions.

13I am not seized.