Joanna Montanaro v. Robert Ipacs Professional Corporation, 2015 HRTO 364

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanna Montanaro

Applicant

-and-

Robert Ipacs Professional Corporation

Respondent

DECISION

Adjudicator: David Muir

Date: March 23, 2015

Citation: 2015 HRTO 364

Indexed as: Montanaro v. Robert Ipacs Professional Corporation

1On September 19, 2014 the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”) that requested submissions on why this Application should not be dismissed pursuant to s.34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The NOID indicated that the civil action which the applicant initiated against the respondent appeared to seek a remedy with respect to an alleged Code violation that is also the subject matter of the present Application.

2In a Case Assessment Direction issued on November 19, 2014 the Tribunal advised the parties that based on the materials before it at the time it did not appear appropriate to dismiss the Application at that stage pursuant to section 34(11).

3However the parties were directed to provide submissions on the question of whether the Application should be deferred because the issues raised in the Application and the civil claim were overlapping. The respondent was also directed to file a Response.

4The parties filed their submissions on the deferral question. However the parties also advised that the statement of claim has been amended on consent to include a claim for damages as a result of an alleged violation of the Code. The respondent argued that the Application should be dismissed pursuant to section 34(11) of the Code because it was now clear that the applicant was seeking an order in damages from the court for the human rights allegations made in this Application.

5In a CAD issued to the parties on February 17, 2015 the applicant was directed to deliver and file any further submissions with respect to this issue. The applicant subsequently sought the consent of the respondent to hold the civil proceeding in abeyance pending the resolution of this Application. Such consent was not given and the respondent argued in response that it would not be appropriate to do so in the circumstances given the statutory bar in section 34(11).

6This Application is dismissed pursuant to section 34(11) of the Code which provides 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.

7Amongst other relief the amended statement of claim issued on June 18, 2014 alleges wrongful dismissal and seeks damages for this breach. The statement of claim also seeks the following:

Human Rights damages in the amount of $200,000 for breaches of the Human Rights Code as a result of the Plaintiff being subjected to sexual harassment and sexual advances in the workplace;

8In her Application the applicant alleges that she experienced discrimination in the workplace on the basis of sex, sexual solicitation and gender identity. In particular the applicant alleges that she was coerced into sexual activity with the personal respondent and when she ceased participating in such activities there were negative consequences for her up to and including her dismissal from employment.

9Although some more detail is provided in the amended statement of claim the allegations made by the applicant in the civil proceeding are essentially the same as those made in the Application.

10The applicant as indicated, sought the agreement of the respondent to stand the civil proceeding down pending the conclusion of this Application. I agree with the respondent that this is not what is contemplated by section 34(11). The section requires that an applicant make a choice of forum and establishes a statutory bar to proceeding in both fora at the same time.

11The applicant makes a number of other arguments about why she would prefer to proceed with the Application and leave the civil action as a “place holder” in the event that there as yet unidentified residual issues that can not be resolved in this process. Whether or not the applicant’s assessment of the benefits of the Tribunal process are well founded or not in comparison with the civil claim, again, this is not what is contemplated by section 34(11) of the Code.

12It is clear that the facts and issues alleged in the statement of claim are the same as those raised in this Application. The statement of claim is somewhat more fulsome in elaborating the details of her Code related allegations but in substance the allegations are indistinguishable.

13I find that the requirements of section 34(11) are met here in that a civil proceeding has been commenced where damages are sought for alleged violations of the Code and that proceeding has not been finally determined, withdrawn or settled. For these reasons the Application is dismissed