Karl Grant v. Sunnybrook Health Sciences Centre, Robyn Campol and Eve Buss, 2013 HRTO 59

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karl Grant

Applicant

-and-

Sunnybrook Health Sciences Centre, Robyn Campol and Eve Buss

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: January 11, 2013

Citation: 2013 HRTO 59

Indexed as: Grant v. Sunnybrook Health Science Centre

WRITTEN SUBMISSIONS

Karl Grant, Applicant

Bram Lecker, Counsel

Sunnybrook Health Sciences Centre, Robyn Campol and Eve Buss, Respondents

Alix Herber, Counsel

1This is an Application filed on June 7, 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 disability. This Decision addresses a Request for an Order During Proceeding (“RFOP”) seeking dismissal of the Application pursuant to section 34(11) of the Code.

THE APPLICATION

2In the Application, the applicant states that he began to experience significant medical concerns in June 2010, which required him to take a medical leave of absence from his employment with the organizational respondent until early March 2012. The applicant states that he began a gradual return to work plan and that his physician recommended that he avoid sedentary work. The applicant alleges that the respondents ignored his physician’s recommendation and assigned the applicant sedentary duties not comparable to his pre-leave position. The applicant alleges that notwithstanding clarification from his physician and a letter from his lawyer, the respondents continued to ignore his physician’s recommendation and refused to allow the applicant to return to his pre-leave position to facilitate his return to work. The Application incorporates by reference letters written on the applicant’s behalf by his physician and his lawyer regarding the accommodation the applicant needed. The applicant attended work between May 15 and 17, 2012 because the organizational respondent threatened to consider him to have abandoned his employment if he did not come to work. However, the applicant was unable to remain at work because of his condition.

THE REQUEST TO DISMISS

3The respondents filed their RFOP on November 27, 2012. The respondents submitted that the applicant commenced a civil proceeding against the organizational respondent and Desjardins Financial Security, the insurer of the long-term disability benefits, in the Ontario Superior Court of Justice, Court File No. CV-12-462344. The respondents submitted that the claims and issues raised in the civil action are essentially the same as those raised in the Application and the applicant relies upon and pleads a breach of the Code in the Statement of Claim. The respondents submit that the civil claim also asserts that the organizational respondent improperly terminated him after returning from a medical leave and alleges that the organizational respondent failed to accommodate him. The respondents submit that the Statement of Claim also incorporates by reference a series of letters the applicant’s lawyer sent to the organizational respondent that specifically refer to the Code and describe how the organizational respondent discriminated against the applicant.

4The respondents submit that the applicant seeks similar remedies arising from the same facts. Given the similarities between the civil action and the Application, the respondents submit that the witnesses and evidence would be the same in both matters.

5The applicant filed a Response to the RFOP on December 11, 2012. The applicant submitted that the Application should continue against the individual respondents only and not the organizational respondent. The applicant submits that the individual respondents are not named in the civil action and are directly responsible for the applicant’s suffering.

ANALYSIS AND DECISION

6Section 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.

7In 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.

8In 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.

9The applicant’s civil action very clearly arises out of the same facts as the Application and, equally clearly, the applicant seeks remedies for the same alleged violations of the Code in the civil action as in the Application. The applicant specifically pleaded sections 5(1) and 46.1(1) of the Code in the Statement of Claim. The applicant does not deny this, but argues that the Application can proceed against the individual respondents because they are not defendants in the civil action. Section 34(11), however, bars applications where a civil claim seeks remedies for the same infringement of the Code regardless of who the legal parties are. The purpose of section 34(11), avoiding duplicative litigation, would be frustrated if applicants could pursue the same human rights claims before the Tribunal and in court by merely claiming against different respondents / defendants in each forum. See Cote v. Bruce Edmeades, 2010 HRTO 1803 at paragraph 11.

10This Application unquestionably falls within the circumstances described in section 34(11). Consequently, the Application may not proceed because the language in section 34(11) is a mandatory bar and the Tribunal has no jurisdiction over this Application.

11The Application is dismissed.