Baillu v. Bruyere Continuing Care, 2015 HRTO 992

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie-Anne Baillu

Applicant

-and-

Bruyere Continuing Care, University of Ottawa, Pamela Eisener-Parsche and Anne Harley

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: July 24, 2015

Citation: 2015 HRTO 992

Indexed as: Baillu v. Bruyere Continuing Care

WRITTEN SUBMISSIONS

Leslie-Anne Baillu

Self-represented

Bruyere Continuing Care, Pamela Eisener-Parsche and Anne Harley, Respondents

Jacquie Dagher, Counsel

University of Ottawa, Respondent

No one appearing

1This is an Application filed on under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of ethnic origin, sex, family status and marital status. This Decision addresses a Request for an Order During Proceeding seeking dismissal of the Application pursuant to section 34(11) of the Code.

The Application

2The applicant is a medical doctor who had hospital privileges at the respondent Bruyere Continuing Care (“Bruyere”). In the original Application, the applicant alleged that Bruyere and the respondent University of Ottawa discriminated against her in hiring processes in 2009, 2010 and 2011. The applicant also alleged that she was subjected to bullying and harassment in 2011. The applicant alleged that the Chief of Staff of Bruyere at the time condoned the harassment and rejected the complaint that she filed.

3Following a preliminary hearing, the Tribunal dismissed the allegations regarding the 2009 and 2010 hiring processes for delay. See Baillu v. Bruyere Continuing Care, 2015 HRTO 135. In conjunction with new, timely, allegations the applicant raised in her submissions, the Tribunal found that the applicant’s allegations amounted to a series of incidents for the purposes of section 34(1)(b) of the Code and were therefore within the Tribunal’s jurisdiction. The Tribunal also declined to dismiss the Application as having no reasonable prospect of success. The Tribunal directed the applicant to file an amended Application incorporating her new allegations, which she did. The new allegations included that she felt compelled to resign her position with Bruyere in February 2013, that she filed a harassment complaint in November 2013, that Bruyere retained a third party investigator to investigate the complaint, that Bruyere advised her in March 2014 that her complaint was unfounded and that Bruyere refused to provide her with a copy of the investigator’s report. The applicant also stated that she applied for a position with the University of Ottawa in March 2014, but alleged that the hiring process was tainted by discrimination and she was not successful.

The Request to Dismiss

4On July 3, 2015, Bruyere and the individual respondents (the “requesting respondents”) filed a request to dismiss the Application on the basis of section 34(11) of the Code. The requesting respondents submitted that the applicant alleges in the Application that she was subject to bullying, harassment and discrimination by the individual respondents, which was condoned by Bruyere’s Chief of Staff until she resigned in February 2013; the investigation of her complaint was not transparent; discrimination against francophones and mismanagement of her personnel file; discrimination against women and woman-on-woman bullying and harassment; discrimination against single parents; discrimination against children with disabilities; bias in internal job competitions; and, failure to acknowledge the violation of her rights and support her.

5The requesting respondents submitted that the applicant has now filed a civil action against Bruyere and included the Statement of Claim in the request to dismiss. The requesting respondents submitted that the Statement of Claim is based on the same allegations of discrimination and harassment set out in the Application. The respondents submitted that the applicant seeks the same relief in both proceedings, including general damages for discrimination, bullying and harassment as well as disclosure of the investigation report regarding her complaint. The requesting respondents submitted that in many cases the allegations set out in the Statement of Claim are identical to those contained in the Application.

6The requesting respondents acknowledged that the individual respondents are not defendants in the civil action. The requesting respondents submitted, however, that the individual respondents held senior leadership positions at Bruyere at the times material to the Application and civil action. Consequently, they played central roles in the decisions the applicant complains of in both proceedings. The respondents submitted that the Application was barred pursuant to section 34(11) of the Code and should be dismissed.

7The applicant responded to the request to dismiss by way of a letter filed on July 9, 2015. The applicant submitted that she is not a lawyer and that the civil action was a “back up plan” in the event the Tribunal rejects her Application. The applicant submitted that she does not intend to go through the process twice and apologized if she breached the Tribunal’s rules. The applicant stated that she can withdraw the civil action if necessary, as she prefers to deal with the matter through the Tribunal. The applicant also submitted that Bruyere is the only defendant to the civil action and it is not directed at the other respondents. The balance of the applicant’s submissions were not relevant to the issue of whether the Application must be dismissed pursuant to section 34(11) of the Code.

ANALYSIS AND DECISION

8Section 34(11) of the Code reads 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.

9In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at paragraph 6, the Tribunal described the operation of s. 34(11) as follows:

If 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.

10In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paragraphs 10, 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.

11The applicant’s civil action very clearly arises out of the same facts as the Application and, equally clearly, the applicant seeks remedies for the same alleged violations of the Code in the civil action as in the Application. The applicant seems to acknowledge this as she described her civil action as her “back up plan” if her Application is unsuccessful. This is precisely the behaviour section 34(11) is intended to prevent. The applicant also noted that only Bruyere is named as a defendant in the civil action. Section 34(11), however, bars applications where a civil claim seeks remedies for the same infringement of the Code regardless of whom the legal parties are. The purpose of section 34(11), avoiding duplicative litigation, would be frustrated if applicants could pursue the same human rights claims before the Tribunal and in court by merely claiming against different respondents / defendants in each forum. See Cote v. Bruce Edmeades, 2010 HRTO 1803 at paragraph 11, Hallett v. Grey Bruce Health Services, 2009 HRTO 403 at paragraph 16 and Grant v. Sunnybrook Health Science Centre, 2013 HRTO 59 at paragraph 9.

12This Application clearly falls within the circumstances described in section 34(11). Consequently, the Application may not proceed because the language in section 34(11) is a mandatory bar and the Tribunal has no jurisdiction over this Application.

13The Application is dismissed.