Henshaw v. Rochester Place Resort Inc., 2014 HRTO 1727

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Henshaw

Applicant

-and-

Rochester Place Resort Inc.

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: November 28, 2014

Citation: 2014 HRTO 1727

Indexed as: Henshaw v. Rochester Place Resort Inc.

WRITTEN SUBMISSIONS

Stephen Henshaw, Applicant

Bryce Chandler, Counsel

Rochester Place Resort Inc., Respondent

Daniel Ableser, Counsel

Introduction

1This is an Application filed under section 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 and age. This matter is scheduled to be heard on December 5, 2014 in Windsor, Ontario.

2On November 21, 2014, the Tribunal received a request from counsel for the applicant seeking to have the Application deferred on the basis that the applicant had filed a Notice of Claim in Small Claims court on November 18, 2014. A copy of the statement of claim was attached to the request and the applicant acknowledges that the Small Claim Court action “involves the same facts”.

3Upon receipt of the applicant’s request, the Tribunal directed the parties to make submissions on the applicant’s request as well as on the issue of whether the Application should be dismissed on the basis of s. 34(11) of the Code.

4The applicant has renewed his request that the matter be deferred rather than dismissed on the basis of s.34(11). He implies that the human rights Application is broader in scope than the civil action. The applicant also argues that it is impossible to know the outcome of the small claims court action and that deferral is the more appropriate action. The respondent takes the position that the Application should be dismissed without prejudice to the applicant’s right to re-file if the court declines jurisdiction.

5For the following reasons, this Application is dismissed.

decision

6Section 34(11) of the Code states:

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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

7Section 46.1 reads as follows:

46.1 (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.

8In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, 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.

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.

9The determinative question to be considered in undertaking a section 34(11) analysis, therefore, is whether the civil action explicitly or implicitly raises Code-related interests and seeks a remedy for those alleged human rights concerns: see for example, Smith v. Sears Canada, 2010 HRTO 1834 and Jarrett v. Vance, 2012 HRTO 24.

10The Divisional Court has emphasized that section 34(11) is not discretionary and bars an Application from proceeding: Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319. The Tribunal does not have jurisdiction and, to paraphrase the Divisional Court, it does not matter that the civil action could be withdrawn or dismissed. “In short, s.34(11) requires an applicant to choose between the Tribunal and a (concurrent) civil action”: see para 52. The Divisional Court also confirmed that the fact that the civil suit was commenced before or after the Application is immaterial to the application of section 34(11).

11Based on a review of the human rights Application and the civil pleadings, I conclude that in both proceedings the applicant relies on the same incidents, specifically the alleged reduction in wages and demotion and his claim that he was constructively dismissed. In both proceedings, he alleges the identical type of human rights contraventions, and seeks a remedy for same. Notably, the applicant also seeks general damages for the loss of dignity flowing from the alleged discrimination in both proceedings.

12I find this case fits squarely within the provisions of s.34(11) because the Application and the civil suit are concurrent proceedings that raise substantially all of the same allegations and seek remedies for the same human rights violations. The Tribunal does not have discretion to take jurisdiction of an application when the application comes within the ambit of section 34(11) of the Code.

13Accordingly, the Application is dismissed.