Gasner v. Robbins Hebrew Academy, 2014 HRTO 1605

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Gasner Applicant

-and-

Robbins Hebrew Academy Respondent

DECISION

Adjudicator: Douglas Sanderson Date: October 30, 2014 Citation: 2014 HRTO 1605 Indexed as: Gasner v. Robbins Hebrew Academy

APPEARANCES

Cynthia Gasner, Applicant Philip Viater, Counsel

Robbins Hebrew Academy, Respondent Thomas A. Stefanik, Counsel

1This is an Application filed 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.

The Application

2In the Application, the applicant states that she has difficulty walking and has limited mobility following an injury resulting from a slip and fall. In particular, the applicant states that she is no longer able to operate a car. The applicant was employed with the respondent as a Support Staff worker at the respondent’s Bayview Campus. The applicant states that in December 2011 the respondent purported to transfer the applicant to the Bathurst Campus. The applicant takes the position that the new location was not appropriate in light of her disability both because of accessibility issues and because of the additional commuting time required. The applicant states that she requested that the respondent accommodate her by allowing her to remain at the Bayview Campus, but the respondent refused this request and in a letter dated January 18, 2012 asked the applicant to come to the Bathurst Campus. The applicant states that she began a medical leave shortly afterwards. The respondent then shut off the applicant’s e-mail address, cut off her medical leave and sent her a Record of Employment.

The Respondent’s Request

3This matter is scheduled for hearing on December 10 and 11, 2014. On September 11, 2014, the respondent filed a Request for an Order During Proceedings seeking deferral of this Application because the applicant commenced a civil proceeding that is based on the same facts and that raises the same human rights issues. By letter dated September 16, 2014, counsel for the applicant consented to deferral of the Application. By letter dated September 24, 2014, however, the Tribunal advised the parties that there was a question of whether the Tribunal has lost jurisdiction to proceed with this Application, even to defer the matter, pursuant to section 34(11) of the Code. Section 34(11) of the Code states 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.

In the letter, the Tribunal advised the parties that the Tribunal may make its decision based only on the information in the file if the parties did not file written submissions in the required time.

4In these circumstances, the Tribunal directed the parties to make submissions regarding the Tribunal’s jurisdiction to proceed with the Application. The Tribunal directed the applicant to file her submission within 14 days of the date of the Tribunal’s letter. By e-mail message dated October 7, 2014, the applicant requested an extension of time to file her submission to October 20, 2014. The Tribunal granted this request by letter dated October 9, 2014. By e-mail message dated October 21, 2014, counsel for the applicant indicated that he was waiting to hear from counsel in the civil proceeding regarding whether the human rights components of the civil claim would be removed. By letter dated October 22, 2014, the respondent submitted that the applicant has not filed submissions as directed by the Tribunal and requested that the Tribunal deal with the issue of the applicant’s civil proceeding. As of the date of this Decision, the applicant has not filed submissions regarding the Tribunal’s jurisdiction to proceed with this Application.

Analysis and Decision

5In the circumstances described above, I find it appropriate to decide this matter based on the materials filed with the Tribunal. For the following reasons, I find that the Tribunal has no jurisdiction to continue to deal with this Application.

6The materials filed with the Tribunal indicate that the applicant filed a Notice of Action, dated March 6, 2014 and an Amended Statement of Claim, dated March 25, 2014 against the respondent, Court File number CV-14-499727. The applicant’s Court Action is a wrongful dismissal claim that is clearly based on the same facts as this Application. In the civil claim, the applicant makes the same allegations to the effect that the transfer to the Bathurst Campus was inappropriate in light of her disability and that the respondent refused to accommodate her. The applicant also seeks damages for “loss of employment for breach of the Ontario Human Rights Code” and damages “for injury to dignity, self-respect and self-esteem for breach of the Ontario Human Rights Code”.

7The Tribunal has held that section 34(11) extends to civil proceedings commenced after the filing of an Application with the Tribunal. This approach was upheld by the Divisional Court as reasonable and rationally supportable: Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319; [2012] O.J. No. 864 (QL); Leave to OCA refused Oct 26, 2012.

8The purpose of section 34(11) is to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paragraphs 10-11, the Tribunal concluded that a claim need not specifically plead section 46.1 of the Code for section 34(11) 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.

9In my view, the applicant’s Court Action against the respondent is based on the same facts as this Application and the applicant makes the same Code-based allegations in both proceedings. The applicant did not specifically plead section 46.1 of the Code in her civil suit, but she is clearly seeking human rights remedies before the Court. In particular the applicant’s claim “for injury to dignity, self-respect and self-esteem” is very similar to the Tribunal’s power to order restitution “for injury to dignity, feelings and self-respect”, pursuant to section 46.1 (1)2 of the Code.

10In these circumstances, I find that the applicant’s civil claim seeks remedies with respect to infringement of her rights under the Code, based on the same facts as this Application. Accordingly, section 34(11)(a) applies to bar this Application and it is dismissed.