Romain v. Ernst & Young LLP, 2015 HRTO 881

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Romain

Applicant

-and-

Ernst & Young LLP and Egan LLP

Respondents

DECISION

Adjudicator: Brian Eyolfson

Date: July 2, 2015

Citation: 2015 HRTO 881

Indexed as: Romain v. Ernst & Young LLP

WRITTEN SUBMISSIONS

Melissa Romain, Applicant

Adam D. Romain, Counsel

Ernst & Young LLP and Egan LLP, Respondents

Jeffrey E. Goodman and Dianne E. Jozefacki, Counsel

Introduction

1This Application was filed on September 16, 2013, and alleges discrimination in employment on the basis of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondents failed to accommodate her disability and terminated her employment because of her disability.

2In their Response to the Application, the respondents submitted that the Application was filed beyond the one year limitation period in s.34(1) of the Code, as the limitation period began to run on September 7, 2012. The respondents submitted that the applicant was notified of the termination of her employment at a meeting on September 7, 2012, which was also confirmed by a letter dated September 7, 2012, provided to her on the same day. They submitted that, although the termination was effective September 14, 2012, the applicant was not required to perform any work or be present after September 7, 2012.

3In the circumstances, the Tribunal scheduled an in person preliminary hearing on the issue of delay. The hearing took place on September 24, 2014, and the parties subsequently exchanged and filed written submissions on the issue of delay, which was to be completed by November 21, 2014.

4Prior to the Tribunal issuing a decision on the issue of delay, the Tribunal received correspondence from the parties indicating that the applicant had commenced a Small Claims Court Claim (the “Claim”) against the respondents. In the Claim, the applicant pleads and relies upon the Code, and seeks damages for injury to dignity, feelings and self-respect.

5In a Case Assessment Direction (“CAD”) dated March 13, 2015, the Tribunal indicated that it appears that the Application is outside the Tribunal’s jurisdiction in light of s.34(11) of the Code, which provides as follows:

34.(11) 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.

6In the CAD, the Tribunal indicated that the parties could make submissions on the application of s.34(11) to the present case, and referred the parties to some Tribunal decisions addressing s.34(11) of the Code. The Tribunal also indicated that, upon receipt of the parties’ submissions, the Tribunal may determine the issue of the applicability of s.34(11) of the Code to the present Application, and/or the issue of delay, or issue further directions.

THE PARTIES’ SUBMISSIONS

7In their submissions dated March 27, 2015, the respondents submit that s. 34(11) applies in the circumstances, such that the applicant is barred from proceeding with the Application. They submit that the applicant recently commenced a civil proceeding claiming damages for, among other things, a breach of the Code, and that the applicant’s allegations that her rights under the Code have been infringed arise out of the same specific factual context as in the Application. The respondents submit that, consequently, pursuant to s.34(11), the applicant is barred from continuing with the Application, and the Tribunal does not have jurisdiction to consider it.

8In her submissions dated April 10, 2015, the applicant asks that the timing of the enforcement of s.34(11) be deferred until after a decision is made in relation to the preliminary issue of whether she is statute-barred from brining the Application on the basis of delay through the operation of s.34(1) of the Code. She asks that the delay issue be determined in advance of being put to the election of whether to withdraw her Claim. The applicant submits that the enforcement of s.34(11) should be determined in light of the clear intention of the legislators to provide applicants with a choice between the Court and the Tribunal. She also submits that it is within the Tribunal’s discretion to defer the hearing of the s.34(11) issue until a realistic choice is available to the applicant as to the forum of redress for her claims of discrimination.

9The applicant submits that while she was waiting for a decision on the issue of delay, the limitation period to bring a civil action approached, and steps were taken to preserve her right to proceed in Court, should the Tribunal determine that her Application was barred on the basis of delay through the operation of s.34(1). She submits that she is not seeking to proceed with two parallel proceedings.

10The applicant also explains that her employment was terminated effective September 14, 2012, and that she commenced the Claim on September 5, 2014, prior to the expiry of the two year limitation period for doing so, and prior to the September 24, 2014 in person hearing before the Tribunal addressing the issue of delay. She explains that the Claim was not served on the respondents pending determination of the issue of delay in the Application, but, as of March 5, 2015, she could not delay service any longer, as the Claim had to be served within six months of the date of issuance.

DECISION

11In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the purpose of s.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.

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.

12In the present case, there does not appear to be any dispute that, in both the Application and the civil proceeding, the applicant has claimed remedies based on the same alleged infringements of the Code.

13In the Application, the applicant alleges that the respondents failed to accommodate her disability and terminated her employment because of her disability. She seeks damages for injury to her dignity, feelings and self-respect.

14In the Claim, the applicant pleads that she was terminated from her employment, solely because of disability, and she relies upon the Code. She also states that the respondents engaged in bad faith conduct towards her in the course of her employment, including discrimination based on disability, and a failure to accommodate her disability. She also pleads that the termination of her employment, and the respondents’ failure to provide her with modified duties, is in direct breach of the Code, and entitles her to damages, including compensation for injury to dignity, feelings and self-respect.

15I also note that the Tribunal has held that s.34(11) applies whether a civil action is commenced before or after an application to the Tribunal. See Borden v. Toronto Grace Health Centre, 2010 HRTO 1109; and, Grogan v. Toronto District School Board, 2011 HRTO 954, aff’d 2012 ONSC 319 (Div. Ct.).

16With respect to the applicant’s submission that it is within the Tribunal’s discretion to defer the hearing of the s. 34(11) issue, I also note that the Divisional Court stated in Grogan that, while ss. 45 and 45.1 of the Code involve the Tribunal exercising a measure of discretion as to when to permit a parallel or duplicative proceeding, s.34(11) is not discretionary. The Court stated that the Tribunal does not have discretion to proceed when an applicant has also commenced a civil action involving the same alleged Code infringements, and it does not matter if an applicant asserts the intention to withdraw the civil action. The Court held that the Code treats concurrent civil actions differently than it treats concurrent administrative proceedings, and it is not open to the Tribunal to proceed if s.34(11) is applicable:

In short, s. 34(11) requires and applicant to choose between the Tribunal and a (concurrent) civil action. It is not up to this court, absent a constitutional challenge, to question the legislator’s clear position on this point.

Grogan, above, at paras. 46 to 52.

17I find that the applicant’s Claim seeks remedies with respect to the same alleged infringements of her rights under the Code that are set out in the Application. Considering that s. 34(11) of the Code is not discretionary, I find that s. 34(11) operates to bar this Application.

18The Application is dismissed.