Sheppard v. Weeneebayko Area Health Authority, 2015 HRTO 1516

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

De-Ann Sheppard

Applicant

-and-

Weeneebayko Area Health Authority

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: November 10, 2015

Citation: 2015 HRTO 1516

Indexed as: Sheppard v. Weeneebayko Area Health Authority

WRITTEN SUBMISSIONS

De-Ann Sheppard, Applicant

Self-represented

Weeneebayko Area Health Authority, Respondent

Joseph Cohen-Lyons, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability.

2In the Application, the applicant described her experience after she assumed the role of Action Director of Patient Care at the Attawapiskat Hospital in December 2012. The applicant alleges that throughout her tenure in that role she was required to work and live in unsafe conditions, unsupported by her superiors, given inadequate resources, harassed and bullied, and removed from her role without a proper investigation into allegations of mismanagement against her.

3The respondent filed a Response in which it requested dismissal of the Application because the applicant filed a claim based on the same fact in a civil court requesting a remedy based on the alleged human rights violation. In the alternative, the respondent requested deferral of the Application pending conclusion of the civil action.

4By letter dated October 15, 2015, the Tribunal directed the applicant to respond to the request to dismiss. The applicant filed a Response to a Request for an Order in response to the request to dismiss on October 27, 2015. The applicant submitted that the civil suit against the respondent shares some of the details of events and transgressions with the Application. The applicant submitted that the civil action does not address her allegations that the respondent failed to accommodate a disability and does not seek remedies for the human rights violations she sustained. The applicant submitted that her human rights claims are best addressed by the Tribunal.

Analysis and Decision

5Section 34(11) of the Code reads as follows:

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.

6Section 46.1 of the Code provides:

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.

7In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at paragraph 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.

8The purpose of section 34(11) is to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paragraphs. 10-11, the Tribunal concluded that a claim need not specifically plead section 46.1 of the Code for section 34(11) to apply:

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 applicant’s civil action very clearly arises out of the same facts as the Application. The applicant did not specifically plead section 46.1 of the Code in the civil claim, but the applicant does claim general damages for “emotional upset, anxiety, humiliation, vexation, embarrassment, and mental distress”. These damages are similar to the damages available under section 46.1(1) of the Code for “injury to dignity, feelings and self-respect”. Contrary to the applicant’s submission, the civil claim contains several allegations of discrimination, harassment and failure to accommodate or provide modified duties, all of which are allegations of breaches of the applicant’s Code rights.

10In these circumstances, I find that applicant’s civil claim seeks remedies with respect to infringement of her rights under the Code, based on the same facts as this Application. Accordingly, section 34(11)(a) applies to bar this Application and it is dismissed.