Shields v. IBM Canada Inc., 2015 HRTO 868

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cameron Shields

Applicant

-and-

IBM Canada Inc.

Respondent

DECISION

Adjudicator: David Muir Date: June 29, 2015 Citation: 2015 HRTO 868 Indexed as: Shields v. IBM Canada Inc.

WRITTEN SUBMISSIONS

Cameron Shields, Applicant

Graham B. Fraser, Counsel

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Tribunal issued a Notice of Intent to Dismiss (NOID) the Application pursuant to section 34(11) of the Code because it appeared that a civil proceeding had been commenced by the applicant with respect to an alleged violation of the Code and that proceeding had not been finally determined, withdrawn or settled.

3The applicant responded to the NOID on June 3, 2015.

4Section 34(11) of the Code 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

5Section 46.1 of the Code provides 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.

6The applicant submitted that he filed the Application to preserve his rights in the event that the civil proceeding did not appropriately deal with the Code issues. The respondent also queried whether the time limit in section 34(1) would only begin to run after a final determination of the civil claim. The applicant also suggests that such a circumstance might support a good faith explanation for the delay. The applicant queries whether it would be permissible to withdraw the Application rather than have it dismissed.

7In considering this issue I have been guided by the Tribunal’s Decision in Rhijnsburger v. Walmart Canada Corp., 2014 HRTO 1749:

Section 34(11) goes to the jurisdiction of the Tribunal to accept and continue to process an Application that has been filed. In determining whether the Application is barred, the Tribunal will have to assess whether the applicant is seeking a remedy for an infringement of the Code pursuant to section 46.1(1). If so the Tribunal will then have to determine whether the civil proceeding has been finally determined or withdrawn. If the requirements of subsection 34(11) are met then the Application is barred and the Tribunal does not have the jurisdiction to continue to proceed with the Application.

In this case the civil claim, amongst other things, asserts that the applicant’s termination from employment was discriminatory….

There is also no dispute that the civil claim has not been finally determined or withdrawn. Therefore, it is clear that the requirements of section 34(11) have been met and that the claim is barred pursuant to the Code. As such the Tribunal does not have jurisdiction over the Application or its subject-matter.

8I agree with and adopt this analysis of these provisions.

9Section 46.1 provides authority for a court to include compensation for an infringement of the Code in an action otherwise properly before it. Section 34(11) is intended to ensure that, where a remedy in a civil proceeding includes or incorporates a claim for compensation arising from an infringement of someone’s rights under the Code, that claim be determined by the court, and not subject to a second claim made to this Tribunal. It, along with other provisions of the Code, seeks to ensure that where substantially the same claim is advanced in another forum that it be litigated once. It is intended to eliminate duplicative court and Tribunal proceedings, where the Court proceeding incorporates a claim for compensation arising from the same alleged infringement of someone’s rights under the Code as are raised in the proceeding before this Tribunal. It is also clear that there is no need that there be a specific request for an Order from the court pursuant to section 46.1 of the Code. See Beaver v. Dr. Hans Epp, 2008 HRTO 282. Nor does there need to be an explicit reference to the Code in the civil claim. See Borden v. Toronto Grace Health Centre, 2010 HRTO 1109 (“Borden”).

10The Statement of Claim and the narrative of the Application (Form 1) are essentially identical. It is not disputed by the applicant that they are essentially the same case. Indeed the applicant’s submissions in response to the NOID are that the Application should not be dismissed but deferred pending the conclusion of the civil proceeding. The applicant suggests that such a stay is contemplated by section 34(12) of the Code which provides as follows:

For the purposes of subsection (11), a proceeding or issue has not been finally determined if a right of appeal exists and the time for appealing has not expired.

11In my view section 34(11) is a statutory bar preventing an applicant from bringing both an Application and commencing a civil claim about the same issues. Section 34(12) it seems to me provides that the statutory bar extends to the end of any appeal period that might exist. It does not suggest that an Application might be deferred pending the conclusion of any appeal period. This interpretation would be entirely contrary to the scheme of section 34(11) which is intended to prevent concurrent proceedings about the same issues.

12The applicant makes other submissions about possibly withdrawing the Application with a view to bringing it back on if the civil proceeding does not appropriately deal with the human rights issues. It is not the Tribunal’s role to provide advice or engage in a discussion with the parties about how they can best proceed with their litigation. However I do note that in Rhijnsburger, above, the Tribunal dealt with the suggestion that the statement of claim in that case might be amended:

I am of the view that having made the determination that the Application is barred is finally determinative of the issue and that it must be dismissed by the Tribunal. I note that the Tribunal has found that once an Application is barred that the applicant will not be given the opportunity to amend a civil claim, see, Kupiec v. Starburst Coin Machines, 2009 HRTO 75, or given the opportunity to withdraw a civil claim, see, Visic v. University of Windsor, 2010 HRTO 2196.

Following the reasoning in these Decisions I find that the Tribunal does not have the power to make any further directions to the parties or to provide the applicant with an opportunity to amend his civil claim so that he can proceed with this Application.

13Again I agree with and adopt the reasoning of the Tribunal in that case. I find as well that this principle applies with equal force to a without prejudice withdrawal.

14For these reasons the Application is dismissed.