Mason v. The Town of Milton, 2016 HRTO 465

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Mason

Applicant

-and-

The Town of Milton

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: April 12, 2016

Citation: 2016 HRTO 465

Indexed as: Mason v. The Town of Milton

WRITTEN SUBMISSIONS

Andrew Mason, Applicant

Cassandra Karewskie, Counsel

The Town of Milton

Richelle M. Pollard, Counsel

1This Decision addresses the issue of whether the Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) should be dismissed pursuant to s. 34(11) as outside the Tribunal’s jurisdiction. The Application was filed on October 30, 2014 and alleges discrimination with respect to employment because of disability. On November 23, 2015 the applicant commenced an action in the Superior Court of Justice seeking human rights remedies. Accordingly, the respondent requests that the Application be dismissed.

2Section 34(11) of the Code reads as follows:

A person who believes that one of his or her rights under Part 1 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.

3In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at para. 8, 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 the 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.

4In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paras. 10 – 11 the Tribunal discussed the purpose of s. 34 (11) and held that a claim need not specifically plead s. 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 on 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 the plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

5Furthermore, s. 34(11) of the Code applies regardless of whether the civil action was commenced before or after the filing of the Application. See Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319 at paras 15, 26-39.

6The Application was commenced with the Tribunal in May 2015. In the Application, the applicant alleges that the respondent discriminated against him on the basis of his disability, that the respondent failed to accommodate him and that he was constructively dismissed. The applicant seeks approximately $92,000 in monetary damages for the infringement of his human rights

7The Statement of Claim, issued on November 23, 2015, does not specifically cite s. 46(1) of the Code. However, it alleges among other things, that “Milton breached its duty to accommodate Mason’s disability”, that the respondent’s action “was inappropriate and constituted discrimination and harassment”, that he was constructively dismissed, that “the Town of Milton’s actions constituted discrimination prohibited under the Ontario Human Rights Code”, and that “The plaintiff pleads and relies on the Ontario Human Rights Code”. In the Statement of Claim, the applicant seeks approximately $350,000 in damages for breaches of the Code as well as damages for wrongful dismissal. In the statement of Claim, the applicant relies on the same facts and specific events that are set out in the Application.

8In substance, the applicant has raised the same facts and issues in his Statement of Claim and in his Application and sought remedies for them in both fora. In these circumstances, Section 34(11) of the Code is therefore triggered.

9As indicated earlier, it matters not that the court proceeding was commenced after the filing of the Application. In considering the purpose of s. 34(11) of the Code the Tribunal noted in Beaver (supra):

The purpose of the provision is to avoid duplication of court and HRTO proceedings alleging particular breaches of the Code, and there is no logical reason why the order in which the two proceedings were commenced should affect whether the Tribunal has jurisdiction (para 11).

10Accordingly, I find that the applicant may not continue to make this Application in light of the commencement of the court action and it is outside the Tribunal’s jurisdiction.

11The applicant is under the impression that this is a matter to be determined under s. 45.1 of the Code and that oral submissions are required before the Tribunal can dismiss the Application under s. 45.1. This is incorrect. This is a question of jurisdiction and not whether another proceeding has appropriately dealt with the substance of the Application. An analysis under s. 45.1 is only undertaken if the relevant application is within the Tribunal’s jurisdiction. I have determined that this Application is not within the Tribunal’s jurisdiction to hear.

12As for oral submissions, pursuant to s. 43(2) of the Code, the Tribunal may not finally dispose of an application within its jurisdiction without providing the parties an opportunity to make oral submissions. However, the Tribunal is not required to hold an oral hearing in cases where the application is not within its jurisdiction. I have found that the Application is not within the Tribunal’s jurisdiction. Accordingly, the Tribunal is not required to hold an oral hearing before dismissing the Application.

13The Application is dismissed. The hearing scheduled for April 25 and 26, 2016 is cancelled.