HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Fernando Contreras
Applicant
-and-
New Image Kitchens Inc., Anthony Pace and Carlos Suarez
Respondents
DECISION
Adjudicator: Kathleen Martin
Indexed as: Contreras v. New Image Kitchens Inc.
WRITTEN SUBMISSIONS
Fernando Contreras, Applicant
Guy Hunter, Counsel
New Image Kitchens Inc., Anthony Pace and Carlos Suarez, Respondents
J. Paul Wearing, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to disability. This Decision determines whether the Application should be dismissed on the basis of section 34 (11) of the Code.
2The Application arises from the applicant’s employment with the organizational respondent. The applicant was injured in the workplace and terminated about three months later. The applicant alleges that he was terminated because of his injury or the termination represented a failure to properly accommodate his workplace injury. As a remedy, among other things, the applicant seeks monetary compensation noting that monetary claims are sought in a civil action and a wage loss in a WSIB matter and that the compensation may therefore vary depending on what monies are received in these other processes.
3The Application also states that there is a court action based on the same facts as the Application and that the applicant asked the court for a remedy based on the discrimination. A copy of the Statement of Claim filed with the Ontario Superior Court of Justice (the “Claim”) has been provided. The Statement of Claim is filed against the respondents as well as an additional defendant. The Statement of Claim alleges that the applicant’s dismissal was a breach of the employer’s duty to accommodate contrary to the Code and the real reason for dismissing the applicant was that he was no longer a useful employee due to his injury.
4On November 22, 2012, the Tribunal issued a Notice of Intent to Defer and directed the parties and any affected person to make submissions on the issue.
5By Case Assessment Direction dated January 16, 2013, the Tribunal directed that the parties also provide submissions addressing sections 34(11) and 46.1 of the Code.
6The applicant has provided submissions opposing dismissal of the Application or its deferral to the civil proceeding.
7The respondents have provided submissions supporting deferral of the Application but have not provided any additional submissions on the issue of s. 34(11) as directed by the Case Assessment Direction.
DOES SECTION 34 (11) BAR THE APPLICATION?
8Section 34 (11) states:
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; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
9In addition, 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:
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.
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.
10In this case, the applicant argues that s. 34 (11) should not bar the Application. The applicant argues that while another proceeding has been commenced which includes a claim for breach of the Code, there has been no finding of an infringement (the language used in s. 46.1(1)) so it is “ambiguous” as to whether the bar to an action under s. 34 (11) has been triggered. In addition, the applicant argues that while commenced earlier, the defendants to the civil claim have not even defended the action as of yet so justice would be best served by having the Application heard.
11I find that the Application should be dismissed based on the clear language of s. 34(11). The interpretation suggested by the applicant is not supported by the language of section 34(11) and the Tribunal’s case law.
12In 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.
13In 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.
14The Statement of Claim in this case falls squarely within the language of section 34 (11). While broader than the Application, the Statement of Claim includes the same factual allegations as the Application (alleged discriminatory termination) and seeks an order for damages for the alleged infringement of the Code. As set out in Beaver, there is no requirement that s. 46.1 be expressly referenced.
15In these circumstances, section 34(11) provides that the applicant may not make an Application. The Tribunal is therefore precluded from proceeding with the Application.
16Accordingly, the Application is dismissed.
Dated at Toronto, this 12th day of February, 2013.
“Signed by”
Kathleen Martin
Vice-chair