Zuluaga v. AEP Canada Inc., 2016 HRTO 1663

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose Zuluaga

Applicant

-and-

AEP Canada Inc.

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: December 22, 2016

Citation: 2016 HRTO 1663

Indexed as: Zuluaga v. AEP Canada Inc.

WRITTEN SUBMISSIONS

Jose Zuluaga, Applicant

No submissions

AEP Canada Inc., Respondent

Allan Wells, Counsel

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

2In the Application, the applicant alleges that he was subjected to persistent bullying and harassment, which included comments regarding his ethnic origin. The applicant alleges that the respondent wrongfully dismissed him because he refused to accept the behaviour to which he was subjected and because of injuries he sustained in a motor vehicle accident. The applicant states that he was dismissed shortly he informed his supervisor that he expected that he would need to take a disability leave.

3The respondent filed a Response in which it requested dismissal of the Application because the applicant filed a claim based on the same facts in a civil court requesting a remedy based on the alleged human rights violation. In particular, the respondent noted that the civil action concerns the termination of the applicant's employment and the applicant seeks damages for discrimination under the Code. The applicant's allegation of discrimination in the civil action is that the respondent dismissed him because of his medical condition following a motor vehicle accident. The respondent submitted that the allegations of bullying and harassment are similar in both proceedings.

4By letter dated September 7, 2016, the Tribunal directed the applicant to respond to the request to dismiss. Although the applicant has filed materials regarding other aspects of this proceeding, he has not filed submissions regarding the request to dismiss and the time for doing so has passed.

Analysis and Decision

5Section 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.

6Section 46.1 of the Code provides:

46.1 (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.

7In 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:

[I]f 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.

8The purpose of section 34(11) is to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paragraphs 10-11, the Tribunal concluded that a claim need not specifically plead section 46.1 of the Code for section 34(11)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.

9The applicant's civil action very clearly arises out of the same facts as the Application. In both proceedings, the applicant alleges that the respondent dismissed him because of disability after he sustained injuries in a motor vehicle accident. The applicant seeks damages for discrimination under the Code in the civil action.

10In these circumstances, I find that applicant's civil claim seeks remedies with respect to infringement of her rights under the Code, based on the same facts as this Application. Accordingly, section 34(11)(a) applies to bar this Application and it is dismissed.