HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vittoria Fera
Applicant
-and-
Arista Homes Limited and Joe Ramos
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as: Fera v. Arista Homes Limited
APPEARANCES
Vittoria Fera, Applicant
Jay Rajagopalan, Counsel
Arista Homes Limited, Respondent
Michael Cooper, Counsel
Joe Ramos, Respondent
Louis Strezos, Counsel
1This is an Application dated November 23, 2012 alleging discrimination with respect to employment because of sex and sexual solicitation or advances contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The applicant subsequently commenced a civil action in the Ontario Superior Court of Justice by Statement of Claim issued November 14, 2013. There is no question that this civil action encompasses the allegations raised in the Application before this Tribunal and seeks a remedy under the Code.
3By Case Assessment Direction dated December 9, 2013, the Tribunal directed that a teleconference hearing be scheduled to hear submissions as to whether this Application was barred pursuant to s. 34(11) of the Code as a result of the civil action. The teleconference hearing was held on June 5, 2014 and I heard submissions from counsel for all parties.
4Section 34(11) of the Code provides 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
5In 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.
6In 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.
7In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109 at para. 11, this Tribunal held that s. 34(11) of the Code operates as a bar to an Application whether the civil action is commenced before or after the Application is filed:
In my view, s. 34(11) applies to bar an application from proceeding where a civil action has been commenced both after and before the application. The word "make" is intended to refer to both the commencement and continuation of the application. . . . The purpose of the provision is to avoid duplication of court and HRTO proceedings alleging particular breaches of the Code, and there is no logical reason why the order in which the two proceedings were commenced should affect whether the Tribunal has jurisdiction.
8The Tribunal's approach to the interpretation of s. 34(11) of the Code to extend to civil proceedings commenced after the filing of an Application with this Tribunal has been upheld by the Divisional Court as reasonable and rationally supportable: Grogan v. Ontario Human Rights Tribunal, released February 10, 2012 (unreported).
9As a result, even though the civil action in the instant case was commenced by the applicant in November 2013 after she already had filed her Application to this Tribunal, her Application may nonetheless be barred by s. 34(11).
10Applicant's counsel did not take any issue with these legal principles. Rather, he sought to persuade this Tribunal to stay the Application pending the outcome of the civil action, rather than dismissing the Application. Counsel referenced the case of Aba-Alkhail v. University of Ottawa, 2010 ONSC 2385, in which a claim in a civil action for a remedy under the Code was dismissed pursuant to s. 46.1(2) of the Code, which provides that a person is not permitted to commence a civil action "based solely on an infringement of a right [under the Code]". In the Aba-Alkhail case, the plaintiff had commenced a civil action in contract and tort against the University as well as seeking a remedy for an infringement of his rights under the Code. The Court held that the plaintiff's actions in contract and tort could not proceed based upon a university's exclusive jurisdiction over matters of an "academic nature", subject only to judicial review regarding procedural fairness and natural justice. Once these causes of action had been dismissed, the only allegations remaining related to alleged infringements of Code rights, which the Court held were barred by s. 46.1(2).
11I will first observe that Aba-Alkhail is an unusual case, given the nature of the civil action and its context of having arisen within the academic environment of a university. In the instant case before me, the applicant asserts causes of action in her civil claim arising in contract on the basis of wrongful dismissal and in tort on the basis of intentional infliction of mental distress, sexual assault, battery and negligence, which are causes of action well-known in civil law.
12In any event, in my view, s. 34(11) of the Code does not afford this Tribunal with a discretion to allow an Application to continue if a civil action has been commenced seeking a Code remedy on the basis of the same allegations. While s. 34(11) uses the word "may" in its opening phrase, the context of the use of this term does not operate to confer a discretion on the Tribunal to defer an Application pending the result of the civil action, but rather refers to the person filing the Application and means that such person is not allowed to file an Application with this Tribunal in the circumstances described in s. 34(11). This conclusion is reinforced by the heading which precedes s. 34(11), which uses the language "where application barred" and supports that an application filed in the circumstances described is to be "barred" as opposed to allowed to continue but merely deferred.
13As stated above, the civil action commenced by the applicant against the respondents expressly claims damages pursuant to the Code, and encompasses the allegations raised in the Application as a basis for seeking damages under the Code. As a result, I find that the applicant is seeking an order in the civil proceeding under section 46.1 of the Code with respect to the infringements alleged in her Application before this Tribunal. Further, the civil proceeding has not been finally determined or withdrawn.
14Accordingly, I find that this Application is barred by s. 34(11) of the Code.
15The Application is therefore dismissed.
Dated at Toronto, this 29th day of August, 2014.
"Signed by"
Mark Hart
Vice-chair