Regan v. Chappell Partners LLP, 2015 HRTO 1660

Human Rights Tribunal of Ontario

B E T W E E N:

Robyrt Regan

Applicant

-and-

Chappell Partners LLP and Ross Anderson

Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: December 9, 2015

Citation: 2015 HRTO 1660

Indexed as: Regan v. Chappell Partners LLP

WRITTEN SUBMISSIONS

Robyrt Regan, Applicant

Self-represented

Chappell Partners LLP and Ross Anderson, Respondents

Laura Cassiani, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of family status and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The respondents made a Request for Dismissal ("Request") on the basis that the Application was barred under section 34(11) of the Code because of a civil action that was commenced by the applicant. The respondents attached a copy of the claim filed by the applicant in the Ontario Superior Court ("the original claim"). In this original claim, the applicant plead that the respondents' alleged activities were a breach of the Code. The original claim indicated that the applicant pleads and relies upon the Code.

3In response to the Request, the applicant submits that, subsequent to the date when the respondents made their Request, he has filed an Amended Statement of Claim with the Ontario Superior Court and he attached a copy of this amended claim. A review of the amended claim shows that any references to alleged breaches of the Code have been struck. In addition, the amended claim has a paragraph that reads:

Regan is not seeking an damages in this action for any breaches of the Ontario Human Rights Code, R.S.O. 1990, c. H.19., which are being sought in a separate proceeding before the Human Rights Tribunal, bearing file No. 2015-21744.

ANALYSIS AND DECISION

4Section 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

5Section 46.1 reads as follows:

(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.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

6In Beaver v. Dr. Hans Epp Dentistry Professional Corp., 2008 HRTO 282, the Tribunal explained the significance of section 34(11):

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.

7The issue to be determined is whether "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".

8When the Application was filed, there was a civil proceeding that had been commenced and at that time, the Statement of Claim contained allegations that the respondent had failed to accommodate the applicant's childcare responsibilities which he alleges was a breach of the Code. In the Statement of Claim, the applicant plead and relied on the Code.

9It is clear, therefore, that at the time of filing, the Application was barred under s.34(11).

10The question now to be determined is whether the Application continues to be barred following the amendments to the Statement of Claim. The Amended Statement of Claim removes all the references to the Code and the allegations that could be viewed as alleged Code breaches. It also includes the statement that is reproduced in paragraph 3 above.

11The Divisional Court considered the meaning of s. 34(11) in Grogan v. Ontario (Human Rights Tribunal), [2012] O.J. No. 864. In that case, the applicant had argued that her Application was not barred because she had filed her Application prior to the time when she commenced the civil claims. She argued that since s. 34(11) states "a civil proceeding has been commenced" and since she had filed the Application before the civil proceeding had been commenced, the Application should not be barred.

12The Court considered this reasoning and found that it could not be supported by a plain reading of s. 34(11). The Court concluded:

Section 34(11), however, is not discretionary. It says that a person "may not make an application" in the face of an outstanding civil application. In other words, the Tribunal does not have discretion to proceed when the applicant has also commenced a civil action involving the same alleged Code infringements. It does not matter that an applicant asserts the intention to withdraw the civil action, or that counsel for the Board might intend to argue before the superior court that the matter should be withdrawn as being a matter of labour relations.

13In Grogan, the Application and the Statement of Claim contained the same facts and allegations of Code breaches. The Tribunal decision, 2011 HRTO 954 states:

The Statement of Claim describes the applicant's interactions with the individual respondents, referring to the same incidents of discriminatory treatment and harassment referenced in the Application and listed above, and alleging a pattern of denigration and differential treatment based on her race…

The Statement of Claim does not specifically cite the Code. Nor does it refer to section 46.1 of the Code. Nonetheless, it is clear that the Statement of Claim alleges discrimination and reprisal by the respondents and seeks damages arising out of that conduct. Read as a whole, the allegations in the Statement of Claim against the respondents rest on the same assertions of discrimination and harassment of the applicant, on the basis of race, as those made in the Application.

14The language of s. 34(11) must be read as a whole: "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". The importance of a civil proceeding to the Tribunal's jurisdiction is that the civil proceeding contains allegations of Code infringement.

15In this Application, the applicant has made it clear that he is not alleging any Code infringements in his civil claim. As the Tribunal has stated previously, the duplication of legal proceedings arising out of the same facts is not a basis for declining jurisdiction over an Application. See: Roycroft v. Premier Salons Ltd., 2013 HRTO 573 and Moreland v. St. Michael's Hospital, 2012 HRTO 2262. Without the duplication in facts that could be seen to allege a Code breach or a pleading of a Code breach, the Application is not barred by s. 34(11). The Tribunal has the jurisdiction to consider the Application.

16In addition to Grogan, the respondents referenced a number of Tribunal decisions in which the Applications were found to be barred under 34(11) because the factual and legal foundations for the allegations of Code breaches were the same in the Applications and the civil actions. In my opinion, the situations that were addressed in those Tribunal decisions and in Grogan above differ from that raised in this Application.

17Now that the Statement of Claim has been amended, there is no overlap in the facts and allegations between the Statement of Claim and the Application. The Application only contains the allegations of the respondent's demands with regard to the applicant's work hours and the applicant's allegations that these actions were a failure by the respondent to accommodate his childcare responsibilities. As has been stated above, any reference to these allegations of Code breach and facts to substantiate this breach, have been removed from the Statement of Claim. Unlike the situation in Grogan above, the amended claim contains no allegations of discrimination under the Code. The allegations in the Statement of Claim are the foundation for a damages claim for breach of contract and negligent misrepresentation. There is no longer any overlap in the allegations and the facts plead to support those allegations between the Statement of Claim and the Application. In this way the Application differs from that in Grogan where the applicant indicated that she intended to withdraw the civil claim but had not actually done so at the time of the Tribunal's decision. Unlike this Application, in Grogan "the civil claim that is proceeding against the respondents rest on the same assertions of discrimination and harassment … as those made in the Application".

18For these reasons, I find that the Application is not barred by section 34(11).

Deferral

19The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. It has stated that deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

20Deferral, however, is not automatically invoked simply because the parties are involved in other legal proceedings. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

Directions to the Parties

21Within 14 days of the date of this Interim Decision, the parties may exchange submissions and file their submissions with the Tribunal on the issue of whether this Application should be deferred until completion of the civil proceeding that is referenced in this decision. If possible, the parties are requested to provide an estimate on the time frame for completion of the civil proceeding.

order

22The respondents' request to dismiss this Application is denied.

23Within 14 days of the date of this Interim Decision, the parties must serve and file submissions on the issue of whether the Application should be deferred pending the conclusion of the civil proceeding.

24I am not seized of this matter.