Human Rights Tribunal of Ontario
B E T W E E N:
Katherine Lin Lin
Applicant
-and-
William Rock Medicine Professional Corporation and William Rock
Respondents
DECISION
Adjudicator: Paul Aterman
Indexed as: Lin Lin v. William Rock Medicine Professional Corporation
WRITTEN SUBMISSIONS
Katherine Lin Lin, Applicant
Self-represented
William Rock Medicine Professional Corporation and William Rock, Respondents
Daniel Bernstein, Counsel
1This Decision explains why the present Application, which alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), will be dismissed.
2The applicant worked for the respondents. Her Application alleges the personal respondent sexually harassed her and offered her favours if she would enter into a close personal relationship with him.
3The applicant has also filed a civil action in the Superior Court of Justice that names the respondents as defendants.
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
5The respondents request that the Application be dismissed pursuant to s.34(11). In the alternative they request that it be deferred pending resolution of the civil action. The applicant has filed submissions that oppose the request. She maintains that the alleged harassment is ongoing. She asks that the request be dealt with fairly and in accordance with the law. She also states that the relief claimed in the civil action "...has been considered part of the amount has been claimed in HRTO" [sic].
6It is clear from a review of the Application and the Statement of Claim that the facts and issues in both proceedings are the same. Both sets of pleadings make the same allegations of sexual harassment by the personal respondent over the same time frame and in the same circumstances. The only difference between the pleadings is that the Statement of Claim also alleges discrimination based on race. Otherwise all of the allegations in the Application are included in the Statement of Claim. Sections of the respondents' Response and the applicant's Reply have been incorporated into the Statement of Claim.
7The "Overview" section of the Statement of Claim begins by stating "This matter has been filed with the Human Rights Tribunal of Ontario". The Statement of Claim ends with the following:
The defendant has acted with wrongful, violated employment law, public
law and the plaintiff's human rights.
The defendant conducted to take advantage of the woman who was in
most of her difficult times, that tortuous behaviour will not be tolerated,
the damages caused to the plaintiff in deeply painful and suffering. [sic]
8The Statement of Claim does not expressly request that the Superior Court make a declaration of a Code violation. However, in substance the Court is not being asked to do anything other than that.
9In Grogan v. Toronto District School Board, 2011 HRTO 954 the Tribunal dealt with a similar situation and said the following at para. 12:
The Statement of Claim does not specifically cite the Code. Nor does it refer to section 46.1 of the Code. Nonetheless, it is clear that the Statement of Claim alleges discrimination and reprisal by the respondents and seeks damages arising out of that conduct. Read as a whole, the allegations in the Statement of Claim against the respondents rest on the same assertions of discrimination and harassment of the applicant, on the basis of race, as those made in the Application.
10The reasoning in Grogan applies here. The Statement of Claim seeks remedies with respect to the alleged infringement of her rights under the Code that arise out of the same facts and issues as in this Application. The purpose of s.34(11) is to prevent a duplication of proceedings before the Tribunal and the court system. Allowing the Application to continue would undermine that purpose. Here s.34(11) operates to bar this Application and it is dismissed for that reason.
order
11The Application is dismissed.
Dated at Toronto, this 20th day of November, 2014.
"signed by"
Paul Aterman
Vice-chair