HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra MacDonald
Applicant
-and-
HCMWorks Inc. and Julia Fournier
Respondents
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: MacDonald v. HCMWorks Inc.
WRITTEN SUBMISSIONS
Sandra MacDonald, Applicant
George Walker, Paralegal
HCMWorks Inc. and Julia Fournier, Respondents
Natalie Scott, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability, gender identity and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On August 17, 2017, the respondent filed its Response in which it made a request to dismiss the Application without filing a full response. The reason for the request to dismiss was that the applicant had filed a civil claim in which she was requesting a remedy for an alleged breach of the Code. The respondent attached the applicant’s Defence and Counterclaim which she filed with the Superior Court.
3Section 34(11) of the Code states:
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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.
4In the narrative of this Application, the applicant alleges she was paid less than her male counterparts who held similar positions; she experienced discrimination on the basis of her disability; and she was terminated after she presented the respondent with a note asking that she be excused from work for medical reasons. She is claiming a remedy for damages to dignity, feelings and self-respect. She is not seeking a remedy for lost wages.
5The statements made in the applicant’s Defence are about the respondent’s business practices and expectations of her as an employee with particular background experience. It also contains statements in which she denies the allegations that she acted in a manner during her employment that was contrary to the terms in her employment contract.
6The Defence contains a statement that her employment involved unwanted challenges due to the conduct of one of the respondent, Julia Fournier, including her “bullying tactics with employees reduced the morale to the extent that [the respondent] was investigated by the Human Rights Commission”. She does not state that this behaviour breached her rights as protected by the Code.
7In the Counterclaim, the applicant is claiming damages for the “tort of intrusion upon seclusion”; and for constructive or wrongful dismissal.
8There are no statements made in this Counterclaim that could be found to be, or could be inferred from the substance to be, a claim for a breach of the Code. As a result, I do not find that section 34(11) applies in this Application to bar it from proceeding.
Should the Application be Deferred Pending the Outcome of the Civil Claim
9Under section 45 of the Code, the Tribunal has the authority to defer consideration of an application. The Tribunal has exercised its discretion to defer applications where there are concurrent legal proceedings between the parties. The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. However, the Tribunal has generally deferred applications where there is an ongoing proceeding involving many of the same underlying facts and/or issues.
Direction to the Parties
10Within 21 days of the date of this Interim Decision, the parties shall serve on each other and file with the Tribunal their submissions on whether the Application should be deferred pending the completion of civil claim filed in the Superior Court.
order
11The respondents’ Request to Dismiss the Application is Dismissed.
12Within 21 days of the date of this Interim Decision, the parties shall serve on each other and file with the Tribunal their submissions on whether the Application should be deferred pending the completion of civil claim filed in the Superior Court
Dated at Toronto, this 13th day of September, 2017.
“Signed by”
Laurie Letheren
Vice-chair