HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kevin McRae
Applicant
-and-
ThyssenKrupp Elevator (Canada) Limited
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: McRae v. ThyssenKrupp Elevator (Canada) Limited
WRITTEN SUBMISSIONS
Kevin McRae, Applicant
Peter McSherry, Counsel
ThyssenKrupp Elevator (Canada) Limited, Respondent
David Cowling, Counsel
1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that members of the respondent’s management staff called him derogatory names, failed to accommodate his disability, and threatened him because of his disability.
2Subsequent to filing the Application, the applicant was terminated and commenced civil proceedings against the respondent in the Ontario Superior Court of Justice. The respondent brought to this the Tribunal’s attention, and provided a copy of the Statement of Claim. In its Response, the respondent requests that the Tribunal dismiss the Application pursuant to section 34(11) of the Code on the basis that the applicant is making the same allegations of harassment and refusal to accommodate his medical requirements in both proceedings. It points out that the applicant is seeking Code damages in his Statement of Claim.
3On May 25, 2015, the Tribunal delivered the Response and Notice of Request to Dismiss to the applicant and directed the applicant to file submissions addressing the dismissal pursuant to section 34(11) of the Code. The applicant filed a Reply, submitting that the Application does not deal with the same subject matter as the civil proceeding. He submits that the Application was filed before the applicant was terminated from his employment and pertains to the applicant’s suspension from work and the respondent’s failure to accommodate his disability. The civil proceeding, the applicant submits, pertains to his termination.
analysis
4Section 34(11) of the Code states:
A person who believe 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 a 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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 infringe or the matter has been settled.
5If 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, section 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. This is not a discretionary measure, but one mandated by section 34(11). See Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319 (Div. Ct.) at para. 48. Section 34(11) applies notwithstanding if the Application was filed before or after the civil proceeding commenced. See Grogan, above, at para. 39.
6In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paras. 10-11, the Tribunal discussed the purpose of section 34(11) and held that a claim need not specifically plead section 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.
7The 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.
8In carefully reviewing the Application and the Statement of Claim, I conclude that the Application should be dismissed pursuant to section 34(11) of the Code.
9It is true that the Application does not contain allegations about the applicant’s termination. The Application was filed before he was terminated. Following Grogan, above, it does not matter that the civil proceeding commenced after the Application was filed. The Application contains allegations that members of management called the applicant names, insisted that he return to work after a workplace injury, failed to accommodate his medical condition, and retaliated against him when he raised concerns about these issues.
10The Statement of Claim is about the applicant’s termination and challenges the reasons that were given to him about his termination. Although paragraph 17 of the statement of claim (see below) does allege a pattern of “vexatious conduct” and “harassment” by the employer, it does not contain specific allegations that the applicant was called names by members of management. However, it claims, in its relief, “damages as a result of the wrongful termination of the Plaintiff’s employment, including general damages for the breach of the Human Rights Code….”, and, at para. 20, “…an award of general damages pursuant to the Human Rights Code….”, both of which amount to a request for a remedy under section 46.1 of the Code.
11While the relief claimed in prayer for relief is linked to the termination, the relief claimed at para. 19 is not. The relief claimed at para. 19 immediately follows paras. 17 and 18, which state:
The Plaintiff states and the fact is that following his filing of a Workplace Safety and Insurance Board accident the employer has engaged in a pattern of vexatious conduct towards himself which included unreasonable refusal to accommodate his medical requirements and harassment.
The Plaintiff states and the fact is that the reasons given for the termination of the Plaintiff’s employment were a pretext and that the real reason he was terminated was as a reprisal for filing a WSIB claim and/or a Human Rights Claim with respect to the treatment that he was receiving while disabled.
12Reading paras. 17 to 19 together, I conclude that the general Code damages sought in para. 19 encompass and relate to, in part, the general allegations in para. 17.
13Furthermore, para. 17 of the Statement of Claim contains an allegation which basically summarizes most of the allegations contained in the Application. It is really the inclusion of this paragraph, when reviewed with the other factors above, which leads the Tribunal to conclude that the same factual basis is being raised in both proceedings. This would require the courts and the Tribunal to hear evidence pertaining to the respondent’s alleged failure to accommodate the applicant’s disability following his workplace injury in December 2014, and make legal findings, including findings of credibility, with respect these allegations.
14Given this overlap, combined with the Code remedies being sought, and the fact that the application of section 34(11) of the Code is not discretionary, the Application is dismissed.
Dated at Toronto, this 25nd day of June, 2015.
“Signed by”
Alison Renton
Vice-chair