MacPherson v. Leon’s Furniture Limited, 2014 HRTO 605

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis MacPherson Applicant

-and-

Leon’s Furniture Limited Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: April 30, 2014 Citation: 2014 HRTO 605 Indexed as: MacPherson v. Leon’s Furniture Limited

WRITTEN SUBMISSIONS

Louis MacPherson, Applicant Self-represented

Leon’s Furniture Ltd., Respondent Kate MacNeill-Keller and Lisa Constantine, Counsel

Introduction

1This Interim Decision addresses the applicant’s request for an interim remedy, his requests to amend his Application and the respondent’s request to dismiss the Application

Request for Interim Remedy

2In his Application, the applicant alleged that the respondent discriminated against him because of disability contrary to the Human Rights Code, R.S.O. c. H.19, as amended (the “Code”). His Application centers on his allegation that the respondent discriminated against him when his Long Term Disability (“LTD”) benefits were calculated based on his earnings during a period of time when he was forced to work part-time due to his medical conditions.

3By Request for Order During Proceedings (“RFOP”), the applicant requested that the Tribunal grant, as an interim remedy, compensation for constructive dismissal based on his average income earned during his last two years of full-time employment.

4Rule 23.2 of the Tribunal’s Rules of Procedure, relating to requests for interim remedies, states:

23.2 The Tribunal may grant an interim remedy where it is satisfied that:

a. the Application appears to have merit;

b. the balance of harm or convenience favours granting the interim remedy requested; and,

c. it is just and appropriate in the circumstances to do so.

5In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal stated that interim remedies are extraordinary remedies. They are only granted when the applicant is able to demonstrate that such a remedy is necessary to ensure a complete, appropriate, and effective remedy at the end of a hearing. The Tribunal also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code.

6I cannot conclude that the balance of harm or convenience favours awarding the interim remedies requested or that they would be just and appropriate in the circumstances. First, I note that the Tribunal does not award compensation for constructive dismissal. Therefore, the interim remedy sought by the applicant is inappropriate for this reason. Second, even this interim remedy were re-characterized as monetary compensation for a loss arising out of the infringement of the Code, I find it would be inappropriate to grant it to the applicant. The result of granting the applicant this interim remedy would be to grant him the kind of final remedy that the Tribunal would have the power to award if he makes out a case of discrimination. As noted in Vella v. City of Toronto, 2011 HRTO 1831, the fact that the interim remedy corresponds to the final remedy sought is a relevant factor weighing in favour of denying the interim remedy. The applicant is essentially asking the Tribunal to grant the kind of final remedy it might award without first making a determination on the merits of the Application.

7For these reasons, the applicant’s request for an interim remedy is denied.

Request to Amend Application

8The applicant requested to amend his Application to include the text of the mediation brief he prepared for the mediation in this case. He also sought to amend the remedy sought in his Application.

9The text of the mediation brief that the applicant sought to add to his Application is 56 pages long. It contains numerous allegations that bear little relationship to the incidents of alleged discrimination contained in the Application. As noted above, the Application relates primarily to the calculation of the applicant’s LTD benefits. The mediation brief contains allegations extending back to early 2005 and relating to other disability leaves taken by the applicant as well as other incidents which appear unrelated to the Code. In the mediation brief, the applicant also refers to case law under the Employment Standards Act and the common law.

10In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

11Having considered these factors, I deny the applicant’s request to amend his Application to add the text of his mediation brief. The proposed amendments would significantly expand the scope of the Application by adding many incidents that are unrelated to the allegations set out in the Application that extend over a period of several years. If the applicant wished to challenge the alleged events set out in his request to amend, he should have done so in a timely way. It is not appropriate to add a variety of unrelated incidents to his Application as he has sought to do. To the extent that the applicant wishes to rely upon the caselaw quoted in the mediation brief in his submissions at the hearing, he does not need to amend his Application to do so. The applicant may rely upon whatever case law he considers relevant at the hearing. For these reasons, I deny the applicant’s request to amend his Application to add the text of his mediation brief.

12However, I grant the applicant’s request to amend the remedy sought in his Application to the remedy set out in his November 18, 2013 RFOP. The Tribunal has regularly granted such requests in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.

13This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

Production Request

14For the reasons set out in Interim Decision, 2014 HRTO 113, the applicant’s production request continues to be premature.

Respondent’s Request to Dismiss

15Section 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.

16In 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.

17The respondent requested that the Tribunal dismiss the Application under s. 34(11) of the Code because the applicant has made a civil claim in which, among other things, he seeks a remedy for the violation of the Code. In his Response to the respondent’s Request, the applicant indicated an intention to withdraw his claim of damages for the violation of the Code from his civil claim. However, the applicant has not filed an Amended Statement of Claim with the Tribunal to demonstrate that he has made such amendments to his civil claim.

18By letter dated April 22, 2014, the respondent responded to the applicant’s submissions. It sought to rely upon the Tribunal’s decision in Khan v. DDSI COMPUCCON System, 2009 HRTO 2220 (“Khan”) to argue that the Application should be dismissed despite the applicant’s stated intention to amend his Statement of Claim. The respondent argues that, even if the applicant has amended his Statement of Claim to remove his request for a remedy for a Code violation, his Application should still be dismissed due to the overlapping facts and remedies between the Application and the civil claim. In the alternative, the respondent requests that the Tribunal defer the Application pending the conclusion of the civil claim to avoid a potential duplication of proceedings.

19The applicant responded to the respondent’s request to dismiss by letter dated April 24, 2014. He appeared to take the position that he should not be required to amend his Statement of Claim unless the respondent formally consents to the amendment. I do not agree with this position that the respondent must consent to the applicant’s proposed amendments to his Statement of Claim. It is the applicant who must select the forum in which he wishes to proceed to assert the human rights portion of his claim. It is the Tribunal’s role to determine whether a claim is barred under s. 34(11) of the Code.

20I also disagree with the respondent’s position that the reasoning in the Khan decision applies to the facts of this case. In Khan, the applicant indicated that he had filed a motion seeking a stay of his civil proceedings. In his motion, the applicant also sought to make amendments to his civil claim to remove references to matters before the Tribunal. However, the Tribunal made clear in the decision that the primary relief sought in the applicant’s motion was a stay of his civil proceedings. The Tribunal dismissed the application on the basis that, if the court granted the applicant’s motion, the applicant’s claim would remain outstanding with the request to amend the Statement of Claim to be determined only after the Tribunal’s proceedings were complete. In my view, the reasoning in the Khan decision would only apply to the present case if the applicant does not in fact amend his Statement of Claim, as he indicated he intended to do, to remove his requests for a remedial order with respect to the alleged infringement of the Code.

21By the enactment of section 34(11), the Legislature requires that applicants make a choice of forum when bringing complaints that their rights under the Code have been violated. According to the wording in s. 34(11)(a) of the Code, a person’s right to file an Application with the Tribunal under s. 34 of the Code is barred only where he or she has filed a civil claim seeking a remedy “with respect to the alleged infringement” of his or her rights under the Code. The mere fact that the civil claim and the Application arise out of the same factual circumstances is not a sufficient basis upon which to conclude that an Application is barred under s. 34(11). See Baghdasserians v. 674469 Ontario, 2008 HRTO 404 and Moreland v. St. Michael’s Hospital, 2012 HRTO 2262.

22At present, it is unclear whether the applicant will carry through with his stated intention to amend his Statement of Claim and, if so, what amendments will be made. As a result, the applicant is directed to file with the Tribunal, within 14 days, a copy of his Amended Statement of Claim if his civil claim has been amended. The applicant is also directed to file submissions in response to the respondent’s request for deferral if he does amend his Statement of Claim.

Order/Directions

23For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request for an interim remedy is denied.

b. The applicant’s request to amend his Application to include the text of his mediation brief is denied.

c. The applicant’s request to amend the remedy sought in his Application is granted. The remedy sought is replaced with the remedy set out in the applicant’s November 18, 2013 RFOP.

d. If the applicant has amended his Statement of Claim, he must file the Amended Statement of Claim with the Tribunal within 14 days of the date of this Interim Decision. He is also directed to file submissions in response to the respondent’s request for deferral in light of any amendments made to the Statement of Claim. If the applicant fails to file an Amended Statement of Claim within 14 days of this Interim Decision, the Tribunal will determine the respondent’s request for dismissal under s. 34(11) of the Code based on the materials before it.

24I am not seized of this matter.