Steven Bartlett v. Hooters Holdings Inc., 2014 HRTO 778

Human Rights Tribunal of Ontario

B E T W E E N:

Steven Bartlett Applicant

-and-

Hooters Holdings Inc., John Goard, Michael Stevenson and Haroon Haiderzadeh Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: June 2, 2014 Citation: 2014 HRTO 778 Indexed as: Bartlett v. Hooters Holdings Inc.

WRITTEN SUBMISSIONS

Steven Bartlett, Applicant Nicole Simes, Counsel

Hooters Holding Inc., John Goard, Michael Stevenson, Haroon Haiderzadeh, Respondents Robert Tighe, Counsel

INTRODUCTION

1The applicant alleges the respondents discriminated against him by subjecting him to ongoing harassment because of his disability and sexual orientation, by failing to accommodate his disability, and by failing to investigate his human rights complaint.

Request for Dismissal

2The respondents have requested that the Tribunal dismiss the Application pursuant to s. 34(11) of the Code on the basis that the applicant has commenced a civil proceeding against the corporate respondent.

3The applicant issued a Statement of Claim against the corporate respondent on March 28, 2014. In the civil claim, the applicant alleges that he was terminated without just cause. The applicant seeks wrongful dismissal damages, and aggravated and punitive damages because of the manner of his dismissal. The civil claim does not reference the Code nor does it seek a remedy for an infringement of the Code. It does refer to discriminatory comments being made about the applicant’s disability and sexual orientation.

4The respondents submit that the Application should be dismissed because the facts and issues in the court action are the same as those in this Application. The respondents submit that because of the civil claim, the Tribunal has no jurisdiction over the Application.

5The applicant submits the Application and the Statement of Claim are separate and distinct legal proceedings arising out of certain similar facts. The applicant states he has not sought a remedy for a Code violation in the civil claim. He states further that the allegations of discrimination in the civil claim were provided as a context to explain why he was unable to accept an offer of re-employment from the corporate respondent.

REQUEST TO DISMISS UNDER S.34(11)

6Section 34(11) of the Code bars a person from making an Application to the Tribunal if a civil proceeding has been commenced seeking a remedy in respect of the alleged Code infringement.

34.(11) 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.

7In this case, the applicant has commenced a civil claim against the corporate respondent on many of the same facts as the Application. However, the civil claim does not refer to the Code, nor does it seek a remedy in respect of the alleged Code infringements upon which the human rights Application is based. The civil claim relates to the termination of the applicant’s employment. The Application relates to allegations of discrimination during the applicant’s employment. While the civil claim does refer to discriminatory comments, those comments are plead as an explanation as to why the applicant could not return to the workplace in order to mitigate his losses. In short, the civil action alleges wrongful dismissal and seeks remedies for this cause of action. The Application seeks compensation for the alleged discrimination.

8In order for an Application to be barred by section 34(11), the civil claim must seek a remedy for the alleged infringement of the applicant’s rights under Part I of the Code. This is because, according to the wording in section 34(11)(a) of the Code, a person’s right to file an Application with the Tribunal under section 34 of the Code is barred only where s/he has filed a civil claim seeking a remedy “with respect to the alleged infringement” of his/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 section 34(11) of the Code. See Goffe v. Dufferin-Peel Catholic District School Board, 2013 HRTO 2014.

9The civil proceeding commenced by the applicant against the corporate respondent does not allege that the corporate respondent infringed his rights under the Code or seek a remedy in respect of such alleged infringement. Accordingly, the Application is not barred pursuant to section 34(11) of the Code. The respondents’ request to dismiss is therefore denied.

ORders

10For the reasons set out above, the respondents’ request to dismiss under section 34(11) of the Code is denied.

11As the parties have agreed to mediate, the Application will now be placed in the mediation queue.

12I am not seized of this matter.