Human Rights Tribunal of Ontario
B E T W E E N:
Elizabeth Xynnis Applicant
-and-
1196197 Ontario Limited (cob Fran’s Restaurant), Stan Jeong, Ryan Ferrando, Brian Morris and Agata Grobys Respondents
DECISION
Adjudicator: Paul Aterman Date: February 4, 2015 Citation: 2015 HRTO 163 Indexed as: Xynnis v. 1196197 Ontario Limited (cob Fran’s Restaurant)
WRITTEN SUBMISSIONS
1196197 Ontario Limited (cob Fran’s Restaurant), Stan Jeong, Ryan Ferrando and Brian Morris, Respondents
Stephen Wolpert, Counsel
1This Decision explains why this Application is being dismissed.
2The Application alleges discrimination with respect to employment because of disability, sex, sexual solicitation, age and record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.
3The applicant worked as a waitress for the corporate respondent for over 25 years until her employment was terminated on January 1, 2014. The personal respondents Stan Jeong and Brian Morris are managers of the corporate respondent. Ryan Ferrando is the night shift supervisor. Agata Grobys is a waitress.
4The applicant alleges that Agata Grobys and Ryan Ferrando regularly harassed and abused her verbally and that Agata Grobys assaulted her. The harassment and verbal abuse are alleged to have been sexist and ageist in their content. The applicant alleges that this behaviour was part of a long history of bullying and abuse that the corporate respondent and its managers, including Stan Jeong and Brian Morris, knew of and condoned. The Application alleges that the termination of her employment was a reprisal for having resisted the allegedly discriminatory harassment and abuse.
5A few days before she filed this Application the applicant also filed a civil action in the Superior Court of Justice. The civil action names the corporate respondent, a numbered company, the owner of the corporate respondent and Ryan Ferrando as defendants. Stan Jeong, Brian Morris and Agata Grobys are not named as defendants.
6The civil action is framed in tort and contract, but it deals with the same facts and issues that form the basis of this Application. The same events are referenced in both proceedings and the story in both proceedings is the same: that the applicant was harassed and abused by Ryan Ferrando and Agata Grobys for a long time; that the managers and the corporate respondent knew of this and let it happen; that the applicant complained about her treatment repeatedly to the Ontario Human Rights Commission and the Ministry of Labour; and that the decision to terminate her employment was a reprisal because she complained of the abuse.
7Even though Stan Jeong, Brian Morris and Agata Grobys are not named as defendants in the civil action, it is clear from reading the Application and the statement of claim that their actions in relation to the applicant are set out in both sets of pleadings. It is specifically alleged in the statement of claim – just as in the Application – that Agata Grobys physically and verbally assaulted the applicant. While neither Stan Jeong nor Brian Morris are mentioned by name in the statement of claim, it is clear from reading the statement of claim that the corporate respondent’s management team – which includes Mr. Jeong and Mr. Morris – is alleged to have condoned the alleged harassment and abuse of the applicant.
8The statement of claim does not allege specific violations of the Code, but it does reference a number of statutes – including the Code – and says that these statutes are being relied upon to prove the applicant’s civil case.
9In filing their joint Response, the corporate respondent and the respondents Jeong, Morris and Ferrando request dismissal of the Application on the ground that the filing of the civil action bars the applicant from proceeding with this Application. The applicant was directed to file a Reply and respond to this request but has not done so. The deadline for doing so has now passed.
10Section 34 (11) of the Code provides:
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.
11Section 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:
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.
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.
12The purpose of s.34(11) is to prevent the duplication of litigation entailed in maintaining two proceedings involving the same factual situation where both proceedings could give rise to a remedy for discrimination. Whether or not a breach of the Code is specifically pleaded in the civil action is irrelevant – see Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.
13The approach the Tribunal has taken, as reflected in Beaver, is not to follow an unduly technical approach but rather to look at whether the substance of an application is also being litigated in a civil suit.
14In keeping with that non-technical approach, in my view it is also not necessary that all the same parties be involved in both proceedings in order for s.34(11) to apply. At least some of the respondents need to also be named as defendants in the civil litigation, otherwise there would be no risk of duplication of litigation. However, it does not follow from this that all of the defendants need be named as respondents before s.34(11) can apply. To adopt such a requirement would only encourage a tactical approach to the naming of parties in order to maintain both a civil suit and an application before the Tribunal. Here the corporate respondent is named in both proceedings, as is Mr. Ferrando.
15In addition, and as noted above, the factual foundation of both proceedings is the same. In these circumstances s.34(11) has the effect of barring the Application. To do otherwise would be to allow a duplication of the litigation already commenced by the applicant in the Superior Court of Justice. For these reasons the Application is dismissed.
order
16The Application is dismissed.
Dated at Toronto, this 4th day of February, 2015.
“Signed by”
__________________________________
Paul Aterman Vice-chair