Driggs Jerez v. Ontario College of Teachers, 2015 HRTO 672

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie-Paule Driggs Jerez

Applicant

-and-

Ontario College of Teachers, Kathy Anstett and Charlie Morrison

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: May 22, 2015

Citation: 2015 HRTO 672

Indexed as: Driggs Jerez v. Ontario College of Teachers

WRITTEN SUBMISSIONS

Marie-Paule Driggs Jerez, Applicant

Domenic Severino, Counsel

Introduction

1This Decision addresses the issue of whether this Application should be dismissed as outside the Tribunal’s jurisdiction pursuant to s. 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment because of race, colour, gender identity and age. The applicant has also commenced civil proceedings against the respondent in the Ontario Superior Court of Justice.

2In the Application, the applicant alleged that the respondent harassed her and treated her differently. Among other things, she alleged that the respondent belittled her, scolded her, publicly ignored her, removed some of her files and generally treated her differently from her Caucasian male colleagues. In response to a question about civil court actions on the Application form, the applicant indicated that she had commenced a civil proceeding based on the same facts as contained in the Application and that she asked for a remedy based on the discrimination alleged in the Application.

3The applicant filed a civil claim against the respondent alleging either constructive or wrongful dismissal. In the claim, she alleges that she was subject to a poisoned work environment, harassment and differential treatment including being belittled, singled out, and not treated equally. In her civil claim, she also alleges that she was subject to racism and sexism. The applicant did not seek a remedy under s. 46.1 of the Code which provides courts with the power to order certain remedies if it finds a violation of the Code in a civil proceeding. The applicant did seek damages for her termination, as well as punitive, exemplary and aggravated damages.

4On April 23, 2015, the Tribunal issued a Notice of Intent to Dismiss the Application under s. 34(11) of the Code. The applicant responded to the Notice submitting that the Application should not be dismissed because she did not mention the Code in her statement of claim. She also submitted that the similarity in the facts between the two claims does not amount to a duplication of legal issues.

Findings

5Section 34(11) of the Code states:

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.

6If 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. See Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at para. 6.

7In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paras. 10-11, the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section 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.

8The Legislature by the enactment of section 34(11) requires that applicants make a choice of forum when bringing complaints that their rights under the Code have been violated. The continued processing of this Application directly engages the policy concerns underlying the section – the dangers of inconsistent findings of fact and the waste of public as well as private resources consequent to duplicative litigation. See McMuldroch v. Honda of Canada Manufacturing, 2009 HRTO 2007 at para. 11.

9I find that the applicant has raised the same facts and issues in her civil Claim and as in her Application. Although the civil Claim does not specifically cite the Code, it raises all of the same allegations of harassment, differential treatment, racism and sexism that are raised in the Application. As a result, I find that the continued processing of this Application would directly engage the policy concerns underlying section 34(11) of the Code – that is, the risk of inconsistent findings of fact and the waste of public as well as private resources arising from duplicative litigation.

order

10For the above reasons, the Application is barred by s. 34(11) of the Code. The Application is therefore dismissed.