HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Stenabaugh

Applicant

-and-

Sokoloff Lawyers and Donald Clarke

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: April 17, 2013

Citation: 2013 HRTO 640

Indexed as: Stenabaugh v. Sokoloff Lawyers

APPEARANCES

Mark Stenabaugh, Applicant

Zane Roth, Counsel

Sokoloff Lawyers and Donald Clarke, Respondents

Wendy Sokoloff and Doug Wright, Counsel

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 20, 2011, and alleges discrimination with respect to employment on the basis of sex and sexual orientation.

2At a case management conference call on April 10, 2013, the respondents advised the applicant and the Tribunal that it was their intention to request a deferral and/or a stay of the hearing in this matter, which they did by letter dated April 11, 2013.

3On April 12, 2013, the Tribunal advised the parties that it would treat the respondents’ request to defer and/or stay the hearing as a Request for an Order During Proceedings (“Request”). The Tribunal also abridged the time for the applicant to respond to the Request, as the Application is scheduled to be heard on April 22 and 23, 2013. To date, the applicant has not responded to the Request and the time for doing so has passed.

4The purpose of this Interim Decision is to address the respondents’ Request to defer and/or stay the hearing in this matter.

REQUEST

5In their Request, the respondents submit that they recently learned that the applicant commenced an action in the Ontario Superior Court, naming Sokolff Lawyers as one of the defendants. They attached a copy of a Statement of Claim issued March 21, 2013.

6The respondents submit that the commencement of two proceedings claiming damages is duplicative, and that the applicant should be required to advance his claim for damages for the alleged infringement of the Code in the Court action. They submit that there are overlapping issues of damages that should be assessed by one trier of fact. They also allege that there are serious credibility issues, and that the Application is an abuse of process.

7In requesting that the Application be stayed, the respondents rely on s. 34(11) of the Code which 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.

8Section 46.1 states as follows:

(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:

1. 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.

2. 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.

9In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the principles applicable to the interpretation of s. 34(11), as follows:

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.

10The Tribunal has also held that the determinative question to be considered in undertaking a s. 34(11) analysis is whether the civil proceeding explicitly or implicitly raises Code-related interests and seeks remedial redress for those alleged human rights concerns. See Scott v. Guyana Goldfields Inc., 2013 HRTO 458, Smith v. Sears Canada, 2010 HRTO 1834, and Jarrett v. Vance, 2012 HRTO 24.

11In his Application, the applicant alleges that he was subjected to discrimination when the individual respondent, Mr. Clarke, asked him an inappropriate question about his health when he returned to the office following a medical appointment. The applicant also alleges that every time he required time off for follow-up medical appointments he was questioned about the reason he was going, and when he returned to the office he was called upon to see what the doctor had said. The applicant also alleges that there were no workplace policies in effect, and no one that he could complain to.

12In his Reply to the respondents’ Response to his Application, the applicant explains that he is seeking $25,000, solely based on his mental anguish, stress and anxiety that he has suffered, and continues to suffer, from this ordeal. He states that it has been continually on his mind, and has caused him continually and unfairly to be upset physically, emotionally and mentally.

13In his Statement of Claim, the applicant seeks, among other things, general damages, loss of income, out-of-pocket expenses and loss of earning capacity, as a result of falling on two occasions at the defendants’ premises. He alleges that he sustained physical injuries, nervousness, headaches, emotional and physical upset and trauma, and pain and suffering.

14I am satisfied, based on a review of the Application and the Statement of Claim, that the applicant has neither raised allegations of discrimination pursuant to the Code, nor asked for restitution for any breach of the Code, in the civil action. Although both matters arise out of the applicant’s employment with the respondents and seek compensation for emotional and physical upset, I find that the applicant’s civil claim does not assert any human rights violations, nor does it seek any remedies for any such violations.

15In the circumstances, I find that the Application is not barred by s. 34(11) of the Code, and that the respondents have not established in their submissions any other basis upon which the Application should be stayed at this stage of the proceeding, including any abuse of process.

Deferral

16With respect to the respondents’ request that the Application be deferred, deferral 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.

17As set out above, the Application and the civil action raise different issues, as the Application alleges discrimination as a result of inappropriate questions asked of the applicant in the workplace, whereas the civil action alleges injuries as a result of falling. The Application was also filed almost 1.5 years prior to the Statement of Claim being issued, and the Application is scheduled to be heard shortly. There is no indication that the civil action is scheduled to be heard at any time in the near future. In the circumstances, I find that it would not be appropriate to defer this Application.

CONCLUSION

18The respondents’ Request that the Application be deferred and/or stayed is dismissed.