CITATION: Ingram v. Human Rights Tribunal of Ontario, 2022 ONSC 3737
DIVISIONAL COURT FILE NO.: 404/20
DATE: 20220624
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
King, Favreau and Nishikawa JJ.
BETWEEN:
Robert Ingram
Applicant
– and –
Human Rights Tribunal of Ontario
and
Cayne’s Super Housewares Incorporated
Respondents
Sean T. Jackson and Wade R. Poziomka, for the Applicant
Brian Blumenthal, for the Respondent, Human Rights Tribunal of Ontario
Dylan Augruso, for the Respondent, Cayne’s Super Housewares Incorporated
HEARD (By videoconference): October 25, 2021
King J.
[1] This is an application brought by Robert Ingram (“Mr. Ingram”) for judicial review of the decision of the Human Rights Tribunal of Ontario (“HRTO”) dated February 1, 2019, and the HRTO Reconsideration Decision dated February 3, 2020, both of which dismissed his application pursuant to s. 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”).
[2] The hearing on this application was held on October 25, 2021. At the completion of the applicant’s submissions, the court advised the parties that it did not need to hear from the respondents. The application was dismissed with reasons to follow. These are the reasons.
Background
[3] Mr. Ingram was employed by the respondent, Cayne’s Super Housewares Incorporated (“Cayne’s”), from 2003 to March 21, 2016. Following the termination of his employment, Mr. Ingram commenced two legal proceedings against Cayne’s.
i. HRTO Complaint
[4] On March 20, 2017, Mr. Ingram filed an application pursuant to s. 34 of the Code against Cayne’s alleging discrimination with respect to his employment on the basis of disability and a failure to be accommodated. He stated that Cayne’s harassed him as a result of 11 personal disabilities and time he missed from work as Operation Manager.
[5] In his complaint, Mr. Ingram listed a number of actions he alleges Cayne’s took against him after it hired the owner’s stepdaughter. These included a minimizing of his work responsibilities, discontinuance of store walk-throughs, exclusion from social events, attendance at trade shows, and relocation of his work to the “demo desk”. He also claimed he was questioned about medications he was taking.
[6] He asserted he was mistreated in the first half of 2016 by being required to use paid vacation time for missed work days due to a kidney stone issue.
[7] Mr. Ingram also alleged as follows:
• Cayne’s wanted to terminate my employment at least in part, because of my disabilities and the impact they had on me.
• Cayne’s then engaged in a process of harassment directed at me in order to bring about my resignation. The harassment was therefore related to my disabilities and, in some cases, was harassment directed at my disabilities.
[8] He alleged that Cayne’s discriminated against him and failed to accommodate his disabilities pursuant to the Code. In this respect, he stated as follows:
Cayne’s failure to accommodate me included forcing me to use vacation time for sick time, failing to enquire as to my perceived disability to do my job and terminating my employment by reasons for my disabilities. [Emphasis added.]
[9] He sought the following remedies in his HRTO complaint:
• A letter of apology;
• Lost remuneration including benefits estimated to be $150,000; and
• General damages for pain and suffering, humiliation, and hurt feelings in the amount of $70,000.
ii. Superior Court Action
[10] On March 21, 2018, Mr. Ingram commenced an action for wrongful dismissal against Cayne’s in the Ontario Superior Court of Justice.
[11] In this claim, Mr. Ingram sought damages, inter alia, as follows:
• $600,000 for breach of contract/wrongful dismissal;
• $450,000 for negligence;
• $5,000 for earned vacation pay;
• $100,000 for intentional/negligent infliction of mental distress or anguish;
• $100,000 for punitive damages; and
• $100,000 for aggravated and/or moral damages.
[12] He alleged that he was wrongfully terminated without just cause on March 21, 2016.
[13] He also alleged that in addition to lost wages for the reasonable notice period of 18 months, he incurred out-of-pocket expenses and was deprived of disability benefits to which he became entitled to during the notice period. He claims that Cayne’s was negligent and breached its duty in not advising him about the disability coverage available to him, which resulted in a loss of disability benefits.
[14] With respect to his claim for bad faith damages, Mr. Ingram repeated the same claims of harassing and demeaning behaviour delineated in the HRTO claim.
[15] He alleged that the defendant regularly engaged in harassing and demeaning behaviour intending to bring about his resignation and to avoid payments in lieu of notice and severance pay. This conduct was insensitive, demeaning, and humiliating.
[16] In his Superior Court claim, Mr. Ingram made no mention of the following:
• His disabilities (except in relation to a claim for post-termination benefits);
• Allegations of discrimination;
• Remedies for Code infringement; or
• The Code.
iii. Section 34(11) Process
[17] Both parties sought relief pursuant to s. 34(11) of the Code, which provides as follows:
(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.
[18] On January 2, 2019, Mr. Ingram made a request to the HRTO that his application be deferred pending the outcome of his Superior Court claim due to the overlapping factual circumstances and damages in the two proceedings.
[19] Cayne’s responded on January 10, 2019, opposing the request for a deferral and seeking an Order During Proceedings dismissing the HRTO complaint.
[20] Mr. Ingram opposed the dismissal of his claim on the basis that there were “crucial” differences between his HRTO application and the Superior Court claim. More specifically, he indicated the Superior Court claim made no Code-based allegations and did not seek any remedy for violation of his rights pursuant to the Code.
[21] On February 1, 2019, the Adjudicator, L. Letheren, granted the request made by Cayne’s and dismissed the complaint pursuant to s. 34(11) of the Code.
[22] The Adjudicator referenced s. 46.1 of the Code, which permits a court to make an order for monetary compensation and/or restitution arising out of an infringement of the Code. The Adjudicator assessed whether Mr. Ingram did, explicitly or implicitly, raise the Code and seek remedies for these alleged breaches in his Superior Court claim so as to bar an application to the HRTO by operation of s. 34(11).
[23] Specifically, while the Superior Court statement of claim did not specify a claim for damages under the Code, or allege breaches of the Code, the claim included the same factual allegations as the HRTO application.
[24] Having reached this conclusion, the Adjudicator stated as follows:
(12) I find that the requirements of section 34(11) are met in this case. In essence, the civil proceeding seeks damages for the same violations of the Code alleged in the application.
[25] That decision was affirmed in a Reconsideration Decision dated February 3, 2020.
[26] Mr. Ingram asserts that the HRTO’s decision and Reconsideration Decision dismissing this application pursuant to s. 34(11) of the Code were unreasonable.
Issues
[27] There are two issues before this court:
i. What is the appropriate standard of review?
ii. Was the HRTO decision (and Reconsideration Decision) unreasonable?
i. Appropriate Standard of Review
[28] Mr. Ingram asserts that the appropriate standard of review to be applied in this matter is reasonableness. He cites the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 441 D.L.R. (4th) 1.
[29] The respondents, HRTO and Cayne’s, both submit that the test is whether the decision of the Tribunal was patently unreasonable, as prescribed in s. 45.8 of the Code, which provides as follows:
Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.
[30] Both respondents provided a detailed analysis in their respective factums as to why the proper test should be patent unreasonableness. However, given the Court of Appeal’s recent decision in Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at para. 83, the applicable standard of review is reasonableness.
ii. Were the Decision and the Subsequent Reconsideration Decision of the Tribunal Unreasonable?
[31] Mr. Ingram submits that it was unreasonable for the Tribunal to conclude that damages for intentional infliction of mental distress and moral damages are the same as human rights damages.
[32] He acknowledges that while there is a substantial overlap in the factual underpinning of both the HRTO application and the Superior Court claim, that does not mean the allegations are the same.
[33] Mr. Ingram asserts the Adjudicator unreasonably concluded the Superior Court claim raised an infringement of the Code when the statement of claim made no such allegation. He asserts the HRTO decision failed to appreciate the significant distinction between facts and allegations.
[34] The applicant relies on the decision in Baker v. Sears Canada, 2009 HRTO 1014 (“Baker”). In that case, the applicant issued factually similar proceedings without mentioning disability or allegations related to the disability in the civil claim. At para. 9, the Adjudicator stated:
[T]he applicant has not triggered section 34(11) because she has not raised the Code in her civil action. While it is true that both the Claim and the Application rest on a similar factual bedrock, arise from the same sequence of events and present related issues, similarity or overlap in the facts does not amount to duplication of legal issues. In the Claim, the applicant does not cite or mention the Code, she refrains from alleging discrimination and, indeed, does not even plead the fact of her disability, which would be fatal to any putative claim for discrimination damages in any event.
[35] Mr. Ingram also relies on another HRTO decision, Santos v. Ferreira, 2018 HRTO 1391 (“Santos”), where the application and the civil claim were identical in many areas, but the claim avoided using the words, “was dismissed because of her disability or because she missed time from work due to a disability”.
[36] The Tribunal did not dismiss the application pursuant to s. 34(11) in either Baker or Santos.
[37] In this case, Mr. Ingram’s Superior Court claim referenced a claim for disability benefits. He asserts that this claim was rooted solely within the post-termination conduct of Cayne’s with respect to his entitlement to disability benefits, whereas the HRTO application only referenced conduct by Cayne’s up to and including termination.
[38] Given that he did not raise any infringement of the Code in his statement of claim, Mr. Ingram submits it would be logically impossible to find he sought a remedy for an infringement of the Code.
[39] Mr. Ingram suggests that in making its s. 34(11) determination, the Adjudicator failed to conduct any inquiry into whether the damages sought in the claim flowed from an allegation of discrimination. The only damages sought arise from or flow only from common law causes of action. It was unreasonable for the HRTO to not appreciate that damages for mental distress and/or moral damages are completely distinct from human rights general damages.
[40] The respondents submit that the applicant has failed to establish that the decision and Reconsideration Decision were unreasonable. I agree.
[41] Section 34(11) of the Code is not discretionary. The HRTO does not have discretion to proceed with an application where the applicant has also commenced a civil action including the same alleged Code infringements: see Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319 (Div. Ct.), at paras. 48 and 51.
[42] The Adjudicator properly concluded that the application of s. 34(11) does not require an explicit reference to s. 46.1 of the Code in the civil claim. Rather, the issue is whether the facts and issues in the two proceedings are the same.
[43] The Adjudicator also properly indicates the underlying intention of s. 34(11), at para. 8, citing Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11:
[T]o 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.
[44] These policy concerns are rooted in eliminating the risk of concurrent proceedings having inconsistent findings, which is described in McMuldroch v. Honda of Canada Manufacturing, 2009 HRTO 2007, at paras. 8-10:
I agree with those decisions where the Tribunal has concluded that where 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. I also find that it is not necessary for there to be specific reference to the Code in the pleadings for the s. 34(11) bar to apply.
The factual claims made in the wrongful dismissal action are indistinguishable from the allegations contained in this Application. The Statement of Claim relies upon the same allegations of harassment and discrimination stemming from the same claim of disability that are raised in the Application. That is sufficient to engage the s. 34(11) bar in my view.
The remedies sought in the two proceedings, although not identical, are clearly overlapping. However, the fact that the remedies claimed are not identical is not determinative of the issue. Moreover, the allegations of harassment and an alleged ongoing failure to accommodate the applicant/plaintiff form the basis for the applicant’s claim to damages for mental distress and punitive damages. [Citations omitted.]
[45] Both decision makers would be required to make the same findings of fact and award similar damages if both matters are permitted to proceed. For example, these would include findings of fact in relation to the alleged harassing behaviour, and findings in relation to the manner of termination.
[46] The cases relied on by the applicant where the HRTO did not apply s. 34(11) were decided on the basis that the action did not reference the Code, or specifically seek a remedy pursuant to the Code. However, this line of cases does not make the HRTO’s decision in this case unreasonable. As reviewed below, the HRTO also has produced a line of cases holding that the appropriate manner to determine whether s. 34(11) should be applied should be based on the factual allegations made by the complainant/plaintiff. That is, an assessment of the substance of the claim should be the determining factor. Such an analysis addresses the root of the dispute and eliminates the risk of contradictory rulings involving the same factual matrix.
[47] In Zheng v. G4S Secure Solutions (Canada Ltd.), 2019 HRTO 407, this approach resulted in the dismissal of a complaint pursuant to s. 34(11). The Tribunal stated, at paras. 22 and 24-25:
I have similarly reviewed the Application and the Statement of Claim in this matter. I acknowledge that the applicant made a clear attempt to remove any mention of Code-based allegations from his Statement of Claim, and to frame the allegations as harassment, discrimination and reprisal without reference to the Code. That said, the allegations set out in the Application and the Statement of Claim are virtually identical in their substance. The only difference is that the applicant suggests that Code grounds which were a factor in is treatment in the Application. The applicant alleges harassment, discrimination and reprisal in the Statement of Claim, but without reference to any Code ground. I am of the view that the questions raised include whether harassment, discrimination and reprisal occurred, their nature and the motives of those alleged to have engaged in the conduct at issue are inextricably linked, such that the same issues are raised in both proceedings.
As stated in the Decision, the applicant seeks remedies in his Statement of Claim for wrongful dismissal, unpaid wages, general damages for defamation and for the intentional infliction of mental suffering, moral damages including aggravated damages for the intentional infliction of mental suffering and punitive damages. The remedies sought for moral damages including aggravated damages for the intentional infliction of mental suffering and punitive damages, though not identical can serve to remedy the consequences to the applicant of the alleged harassment, discrimination and reprisal.
The applicant cannot same himself from the application of 34(11) by advancing the same case, based on the same incidents, alleging the exact same treatment, seeking a remedy for the treatment, but advancing two different theories of his case in two different fora, as this would defeat the purpose of s. 34(11).
[48] In Reis v. CIBC Mortgages, 2009 HRTO 1350, at paras. 6-7, the Tribunal stated as follows:
The applicant takes the position that she is entitled to pursue her right to be free from wrongful dismissal in the Civil Action while pursuing her right to be free from employment discrimination under the Code and that she has not made a specific claim for damages under section 46.1 of the Code.
In my view, 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. The fact that the applicant has only raised the disability-related Code infringement in her Civil Action, and not the alleged race/colour discrimination does not affect my analysis.
[49] As well, at para. 9, the Tribunal stated:
In this case, if the applicant’s interpretation of s. 34(11) were accepted, she would be entitled to proceed with her Application before the Tribunal and present all of her evidence relating to the factual circumstances alleged to have given rise to wrongful dismissal and then duplicate all of that same evidence in the Civil Action to support her allegation that she experienced discrimination arising out of precisely the same factual circumstances. In my view, to permit such an interpretation of s. 34(11) of the Code would undermine its intended purpose of preventing such duplication.
[50] I find the reasoning in these cases provides, at a minimum, a framework for the Adjudicator to reasonably conclude that s. 34(11) should apply.
[51] At para. 11 of the decision, the Adjudicator concluded that the statement of claim includes the same factual allegations as the application. Based on that conclusion, it was reasonable for the Adjudicator to conclude that the claim for infliction of mental harm and moral damages were essentially the same as the compensation claimed before the HRTO.
[52] Based on the overlapping facts in the HRTO complaint, the action before the court, and the nature of the remedies sought, it was not unreasonable for the Adjudicator to have concluded that s. 34(11) of the Code was engaged.
[53] In Vavilov, the Supreme Court of Canada opined on the standard of reasonableness and its robust nature, at paras. 12 and 13:
Reasonableness review is methodologically distinct from correctness review. It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court. … [R]easonableness review must entail a sensitive and respectful, but robust evaluation of administrative decisions.
Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. [Citations omitted.]
[54] It was open to the Adjudicator to reach the conclusion that, based on the similarity of the facts alleged, s. 34(11) applied on the wording of the HRTO complaint and the claim. Therefore, the conclusion to bar the HRTO complaint was not unreasonable.
[55] For these reasons the application is dismissed.
[56] The parties have agreed that the applicant shall pay the respondent, Cayne’s, $7,500 in costs, all inclusive. No costs are awarded to the respondent, HRTO, at their request.
“King J.”
I agree: “Favreau J.”
I agree: “Nishikawa J.”
Released: June 24, 2022
CITATION: Ingram v. Human Rights Tribunal of Ontario, 2022 ONSC 3737
DIVISIONAL COURT FILE NO.: 20/404
DATE: 20220624
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
King, Favreau and Nishikawa JJ.
BETWEEN:
Robert Ingram
-and-
Human Rights Tribunal of Ontario
and
Cayne’s Super Housewares Incorporated
Released: June 24, 2022