HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sonia Coombs-Carpio
Applicant
-and-
Toronto Catholic School Board Employees’ Credit Union Ltd.
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Coombs-Carpio v. Toronto Catholic School Board Employees’ Credit Union Ltd.
APPEARANCES
Sonia Coombs-Carpio, Applicant
Cédric Lamarche, Counsel
Toronto Catholic School Board Employees’ Credit Union Ltd., Respondent
Andrea Sanche, Counsel
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 employment because of disability and marital status. This Interim Decision addresses whether the Application is barred by section 34(11)(a) because the applicant is the plaintiff in an ongoing civil proceeding.
2In the Application, the applicant alleges that the respondent failed to accommodate her because it did not allow her to work at home one day per week to care for her ailing mother, and terminated her employment while she was on medical leave. The applicant seeks damages for breaches to the Code, humiliation, hurt feelings, loss of self-respect, dignity and confidence, and mental anguish.
3The respondent filed a Response in which it requested dismissal of the Application because the applicant has filed a claim in civil court based on the same facts and requesting a remedy based on the alleged human rights violation.
4In response to the respondent’s request to dismiss, the applicant acknowledged that she had filed a statement of claim in civil court against the respondent. The applicant submitted, however, that the civil claim is a wrongful dismissal action in which she seeks damages for pay in lieu of reasonable notice and unpaid wages. The applicant submitted that the civil claim does not allege any breach of the Code and does not claim any remedies for Code violations.
Analysis and Decision
5Section 34(11) of the Code reads as follows:
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
6In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at paragraph 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.
7In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paragraphs 10 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.
8I am satisfied that the applicant’s civil action does not duplicate her Application in which she alleges breaches to the Code. The civil claim is a wrongful dismissal action in which the applicant does not refer to the respondent’s allegedly discriminatory actions described in the Application and seeks damages pursuant to the common law of employment. While both the civil claim and the Application address the termination of the applicant’s employment, the Tribunal has held that the fact that separate legal proceedings arise out of the same facts is not a basis for declining jurisdiction. See Moreland v. St. Michael’s Hospital, 2012 HRTO 2262, and Baker v. Sears Canada, 2009 HRTO 1014.
9I am satisfied that the Application is not barred by section 34(11) and therefore the Tribunal has the jurisdiction to consider the Application. Accordingly, the Application will proceed and will be returned to the Registrar for processing.
Dated at Toronto, this 8th day of January, 2013.
“Signed by”
Douglas Sanderson
Vice-chair
