HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nuria San Martin
Applicant
-and-
Minto Properties Inc. and Michelle Ferguson-Bales
Respondents
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: San Martin v. Minto Properties Inc.
WRITTEN SUBMISSIONS
Nuria San Martin, Applicant
Self-represented
Minto Properties Inc. and Michelle Ferguson-Bales, Respondents
R. Aaron Rubinoff, Counsel
Introduction
1This is an Application filed on September 10, 2012 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 age, ethnicity and place of origin.
2The applicant, who self-identifies as Latino, alleges in her Application that the respondents were intent upon finding fault with her work performance in order to justify replacing her with someone of the same ethnic and place of origin as the new Regional Manager who is Romanian. The respondents terminated her employment and did replace her with someone who she alleges is Romanian. There is nothing in the Application to describe why the applicant believes she was discriminated against because of age other than a statement that the person hired to replace her was younger.
3The Application indicates that there is an ongoing court action based on the same facts as the Application. It also indicates that the applicant is asking the court for a remedy based on discrimination.
4The respondents filed a Response with submissions in which they seek the dismissal of the Application under s.34(11) of the Code because there is an ongoing court proceeding arising out of the same facts as the Application, a court proceeding commenced on January 9, 2013 in which the applicant is seeking an order under s. 46.1 of the Code.
5The Tribunal sent the Response to the applicant, inviting her to provide submissions in reply, but she only replied with the statement, “I would like to proceed.”
6This Decision deals with the request to dismiss the Application.
DISMISSAL OF ETHNICITY AND PLACE OF ORIGIN ALLEGATIONS
7Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
8In 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.
9In 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 s. 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 s. 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.
10In the applicant’s Statement of Claim, the applicant repeats many of the allegations contained in the Application with respect to her allegations because of ethnicity and place of origin. Her Statement of Claim states:
The plaintiff pleads that the Defendant elected to discriminately terminate her due to her race and ethnic orgin, contrary to the Human Rights Code.
11The Statement of Claim also seeks “damages for violations of the Human Rights Code.” While the Statement of Claim does not specifically refer to place of origin as a ground for claiming damages, it is clear that the applicant is seeking damages for the alleged Code infringement with respect to ethnicity and place of origin.
12The applicant 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. I 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.
13Section s. 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; Grogan v. Toronto District School Board, 2011 HRTO 954, upheld in Grogan v. Toronto District School Board, 2012 ONSC 319; and Dusome v. H & M Hospitality Inc., 2013 HRTO 445. I adopt the reasoning of those decisions so that the applicant cannot find relief from the fact that her claim at Small Claims Court was issued after she filed her Application.
14Accordingly, I find that the applicant may not continue to make this Application with respect to her allegations of discrimination on the basis of ethnicity and place of origin in light of the commencement of the court action. It is outside the Tribunal’s jurisdiction. Given that the Tribunal has no jurisdiction over the allegations of discrimination because of ethnicity and place of origin, that part of the Application is dismissed.
NEXT STEPS
15I note that the applicant does not allege discrimination because of age. If the Application wishes to proceed with her allegations of discrimination on the basis of age, then she must file her confirmation with the Tribunal within 14 days, and provide reasons as to why she believes that her age was a reason for the alleged discrimination. If the applicant chooses to proceed on that ground, and she does not describe reasons for her belief other than the person hired to replace her was younger, then the Tribunal may decide to schedule a Summary Hearing to determine if there is no reasonable prospect of success of a finding of discrimination because of age.
16I am not seized.
Dated at Toronto, this 9^th^ day of April, 2013.
“Signed by”
Mary Truemner
Vice-chair```