Christina Dusome v. H & M Hospitality Inc., 2013 HRTO 445

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christina Dusome

Applicant

-and-

H & M Hospitality Inc.

Respondent

DECISION

Adjudicator: Judith Hinchman

Date: March 15, 2013

Citation: 2013 HRTO 445

Indexed as: Dusome v. H & M Hospitality Inc.

APPEARANCES

Christina Dusome, Applicant

Self-represented

H & M Hospitality Inc., Respondent

Self-represented

Introduction

1This Decision addresses the issue of whether this Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), should be dismissed pursuant to s. 34(11) as outside the Tribunal’s jurisdiction. The Application was filed on May 27, 2011 alleging discrimination with respect to employment because of disability, age, association with a person identified by another ground, and reprisal or threat of reprisal. On February 4, 2013, the applicant commenced an action in the Superior Court of Justice that, the respondent alleges, recites the allegations in this Application and seeks human rights remedies. Accordingly, the respondent requests that the Application be dismissed.

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under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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

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.

5Section 34(11)(a) of the Code has been interpreted to apply to situations where the civil action is commenced after an Application is filed. See Borden v. Toronto Grace Health Centre, 2010 HRTO 1109 and Grogan v. Toronto District School Board, 2011 HRTO 954, upheld in Grogan v. Toronto District School Board, 2012 ONSC 319. I adopt the reasoning of those decisions.

6In the HRTO Application, the applicant alleges that she was harassed at work by comments due to her age and fired because of a medical condition that she alleges is a disability and because she had complained about workplace harassment. She also alleges that a factor was her association with another employee who was harassed and that when she supported him she became a target herself.

7In her Statement of Claim, the applicant repeats these allegations adding additional claims of harassment and bullying and citing violation of the Code among other causes of action. As well in her Statement of Claim the applicant pleads and relies on section 46.1 of the Code. It is clear that the applicant is seeking damages for the Code infringement.

8The applicant submits that she intended to file the court action to include the entirety of her Application and then add other claims in that action. She does not dispute that she has raised the same facts and issues in her Statement of Claim and in her HRTO Application and sought remedies for them in both fora.

9I find that the applicant’s civil claim arises out of the same factual context as her Application and seeks remedies with respect to infringement of her rights under the Code. Accordingly, I find that the applicant may not continue to make this Application in light of the commencement of the court action and it is outside the Tribunal’s jurisdiction. This Application is therefore dismissed.