Human Rights Tribunal of Ontario
B E T W E E N:
Vanessa Scott
Applicant
-and-
Guyana Goldfields Inc.
Respondent
Interim Decision
Adjudicator: Ena Chadha
Indexed as: Scott v. Guyana Goldfields Inc.
WRITTEN SUBMISSIONS
Vanessa Scott, Applicant
John R. Evans, Counsel
Guyana Goldfields Inc., Respondent
Bruce E. Rosenberg, Counsel
1This Interim Decision addresses whether the Application should be dismissed or deferred because the applicant commenced a civil action against the respondent.
2The applicant filed an Application on July 3, 2009 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of disability, sex and family status. The applicant alleges that her employment was terminated by the respondent as a result of her having taken medical and pregnancy leave.
3The respondent filed a Response on August 24, 2009 denying the allegations. The respondent alleges that the applicant’s behaviour in the workplace was disruptive and that the applicant’s position was eliminated as part of a corporate reorganization.
4The applicant filed a Reply on September 4, 2009 denying the allegations of workplace problems.
5On February 29, 2012 and March 28, 2012, the respondent filed a request asking that the Application be dismissed on the basis that, on April 18, 2011, the applicant commenced a civil action with respect to the subject matter of the Application. The respondent asserts that the civil action is duplicitous of this Application because the applicant alleges, as well as seeks compensation for, wrongful dismissal. In the alternative, the respondent requests that the Tribunal defer the Application until the conclusion of the civil claim to avoid concurrent proceedings.
6The applicant filed response submissions on March 10, 2012 opposing the request to dismiss on the basis that the civil action does not mention the Code or make human rights allegations and does not seek relief arising out of any Code violation.
7The parties filed additional correspondence and submissions with the Tribunal arguing their positions. Pursuant to a Case Assessment Direction dated February 15, 2013, the parties provided the Tribunal with an update as to the status of the civil proceeding.
SECTION 34(11)
8The purpose of section 34(11) is to bar an application from proceeding before the Tribunal where the applicant has commenced a civil suit based on the same facts and seeking similar remedies for the alleged human rights violations.
9Section 34(11) provides that:
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.
10Section 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.
ANALYSIS & DECISION
11In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the following principles applicable to the interpretation of section 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.
12The determinative question to be considered in undertaking a section 34(11) analysis is whether the civil action explicitly or implicitly raises Code-related interests and seeks remedial redress for those alleged human rights concerns: see for example, Smith v. Sears Canada, 2010 HRTO 1834, and Jarrett v. Vance, 2012 HRTO 24.
13The Tribunal has found that the fact that separate legal proceedings arise out of the same facts is not an automatic basis for declining jurisdiction. See: Moreland v. St. Michael’s Hospital, 2012 HRTO 2262, and Baker v. Sears Canada, 2009 HRTO 1014. The Tribunal has also held that section 34(11) not to apply to bar applications due to on-going civil proceedings when the civil action does not seek remedies for alleged breaches of the Code. See: Baker v. Sears Canada, above; Duhaime-Smith v. The Mohawk Motel Canada, 2012 HRTO 1919; Roy v. Wal-Mart Canada, 2010 HRTO 64, and Ivey v. Millard Refrigerated Services, 2009 HRTO 1065.
14The respondent submits that an application may be dismissed under section 34(11) even when a statement of claim does not specifically plead section 46.1 of the Code, citing paragraph 11 of the Tribunal’s decision in Beaver, above:
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.
15I do not accept that the Application should be dismissed pursuant to section 34(11) of Code or deferred pending the conclusion of the civil proceeding.
16I am satisfied, based on a review of the Application and the parties’ civil pleadings, that in the civil action the applicant has neither raised allegations of discrimination pursuant to the Code, nor asked for restitution for any breach of the Code from the civil court.
17While the applicant’s Statement of Claim and Application narrative pertain to the same chronology of events surrounding her leaves of absence, the civil action does not link the ultimate termination to any human rights grounds or issues. The civil action relates to the alleged breach of employment contract and lack of appropriate notice period; whereas the focus of the Application is the alleged human rights concerns of disability, pregnancy and family status discrimination.
18The fact that the circumstances underlying a civil action and an application are the same, does not trigger section 34(11) unless the applicant has asked the Court to find an infringement of her rights under the Code and/or sought damages under the Code. As noted in Baker v. Sears Canada, 2009 HRTO 1014, the duplication of legal proceedings arising out of the same facts is not a basis for declining jurisdiction over an application.
19As such, although both matters arise out of the termination of the applicant’s employment and seek compensation for lost wages and stock options/shares, the applicant’s civil action does not assert any human rights violations, nor seek any Code-related remedies for any human rights contraventions.
20The respondent argues the applicant is indirectly asking for human rights damages by referencing her disability and maternity leave and seeking similar compensation. I disagree that by setting out the chronological backdrop and asserting her pay in lieu of notice claim that the overlap between the civil and human rights matters is to such a degree as to bar the Tribunal’s jurisdiction over the Application. With respect to the respondent’s concern about the potential for double recovery, the respondent may ask the appropriate decision-maker either at the human rights hearing or at trial to take account of any damages previously awarded.
21In the circumstances of this case, I find section 34(11) of the Code is not engaged.
22In addition, I do not find that it would be fair, just or expeditious to defer this Application pending the conclusion of the civil proceeding.
23Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises in considering what is most fair, just and expeditious in the circumstances of each case.
24This Application was commenced over 1½ years prior to the civil suit. Based on the parties’ submissions, it appears the scheduling of the civil action will not occur any time in the near future. The applicant advises that the civil action has essentially been inactive due to the outstanding Tribunal process.
25Accordingly, I find this is not an appropriate case in which to exercise its discretion to defer. The Tribunal will continue to process the Application.
26I am not seized of this matter.
Dated at Toronto, this 18th day of March, 2013.
"Signed by"
Ena Chadha
Vice-chair