Cory Rhijnsburger v. Walmart Canada Corp., 2014 HRTO 1749

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cory Rhijnsburger

Applicant

-and-

Walmart Canada Corp.

Respondent

DECISION

Adjudicator: Genevieve Debane

Date: December 3, 2014

Citation: 2014 HRTO 1749

Indexed as: Rhijnsburger v. Walmart Canada Corp.

WRITTEN SUBMISSIONS

Cory Rhijnsburger, Applicant

Diego S. Cariaga, Counsel

Walmart Canada Corp., Respondent

Joel Thomas, Counsel

BACKGROUND

1On February 17, 2012 the applicant filed an Application alleging discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A summary hearing was held on January 22, 2013, during which the applicant was represented by another legal counsel. On June 21, 2013, the Tribunal issued Interim Decision 2013 HRTO 1109 (the “Interim Decision”), in which it dismissed a number of the applicant’s allegations of discrimination and harassment. The Tribunal directed that the applicant’s allegations of discrimination and reprisal with respect to the termination of his employment would proceed to a two-day merits hearing.

3This merits hearing was scheduled on September 2 and 3, 2014 in Toronto. Following the commencement of the hearing on September 2, 2014 it became apparent that the applicant had commenced a civil proceeding against the respondent. The Tribunal received from the respondent a copy of a Statement of Claim which had been issued on March 18, 2014, by the Superior Court of Justice (the “civil claim”).

4After reviewing the Statement of Claim I adjourned the hearing to provide the parties with the opportunity of making submissions on the issue of whether the Application was barred pursuant to subsection 34(11) of the Code. The parties agreed to a time-table to file their written submissions.

5On September 9, 2014 the Tribunal received submissions from the respondent in which it took the position that the Application was statute barred pursuant to section 34(11) of the Code but advised that it was willing to consent to an order dismissing the civil claim, on a without cost basis, so that the applicant could continue with his Application. It was the respondent’s position that the applicant had to pick his forum and could not pursue both the civil claim and the Application.

6On October 5, 2014, two days before the his submissions were due, the applicant asked for an extension of time to respond to the issue. I granted the applicant an extension until November 14, 2014 for him to file his submissions.

7On November 14, 2014, the Tribunal received submissions from Mr. Cariaga who has been recently retained by the applicant. Mr. Cariaga concedes that the applicant is asserting that the respondent has infringed his Code rights in the civil claim. However, he advises the Tribunal that he intends to amend the civil claim to include only allegations of wrongful dismissal and intentional infliction of mental suffering. The applicant has not included an amended civil claim for the Tribunal to review.

SECTION 34(11)

8Section 34(11) states:

Where application barred

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.

9Subsection 46.1(1) states:

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.

10In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109, the Tribunal found that section 34(11) applied whether the civil action was commenced before or after an application to the Tribunal.

11The recent amendments to the Code included that Courts in Ontario, in certain circumstances, have the power and jurisdiction to remedy allegations that a person’s Code rights have been infringed. However, the Code specifically prohibits a person from seeking remedies, for human rights violations, in both Court and at the Tribunal. An applicant has to elect either to have allegations of Code violations addressed before the Tribunal or the Court.

12Section 34(11) goes to the jurisdiction of the Tribunal to accept and continue to process an Application that has been filed. In determining whether the Application is barred, the Tribunal will have to assess whether the applicant is seeking a remedy for an infringement of the Code pursuant to section 46.1(1). If so the Tribunal will then have to determine whether the civil proceeding has been finally determined or withdrawn. If the requirements of subsection 34(11) are met then the Application is barred and the Tribunal does not have the jurisdiction to continue to proceed with the Application.

13In this case the civil claim, amongst other things, asserts that the applicant’s termination from employment was discriminatory. In fact the majority of the claim repeatedly makes reference to the fact that the applicant has been discriminated against and harassed by the respondent contrary to the Code. I note that in the civil claim the applicant revives issues which were dismissed in the Interim Decision. There is no dispute, since the parties agree in each of their submissions, that as currently drafted the civil claim seeks remedies for infringements of the Code pursuant to section 46.1(1).

14There is also no dispute that the civil claim has not been finally determined or withdrawn. Therefore, it is clear that the requirements of section 34(11) have been met and that the claim is barred pursuant to the Code. As such the Tribunal does not have jurisdiction over the Application or its subject-matter.

15I am of the view that having made the determination that the Application is barred is finally determinative of the issue and that it must be dismissed by the Tribunal. I note that the Tribunal has found that once an Application is barred that the applicant will not be given the opportunity to amend a civil claim, see, Kupiec v. Starburst Coin Machines, 2009 HRTO 75, or given the opportunity to withdraw a civil claim, see, Visic v. University of Windsor, 2010 HRTO 2196.

16Following the reasoning in these Decisions I find that the Tribunal does not have the power to make any further directions to the parties or to provide the applicant with an opportunity to amend his civil claim so that he can proceed with this Application.

17I note further, that the applicant’s submissions do not include a proposed amended Statement of Claim and I am not in a position to determine whether this amended civil claim would meet the requirements of section 34(11). The time for determining whether or not section 34(11) applies is when there are two initiating documents, an application pursuant to section 34 of the Code and a statement of claim.

18In my view it would be inappropriate to further delay the determination of this matter. The evident mischief of further delay while the civil claim is amended and potentially subject to further challenge seems to me to be contrary to fair, just and expeditious adjudication of this Application.

ORDER

19The Application is dismissed.