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Human Rights (Ontario) - Bhadauria - Human Rights v Civil [HRC 34(11)]. Shaulov v. Law Society of Ontario
In Shaulov v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal upheld the dismissal of a straight-forward human rights lawsuit [HRC 46.1(2)], harkening back to the basics of law established in Bhadauria v Seneca College (SCC, 1981):(4) Dismissal of the appellant’s Code claims against the non-LSO respondents
[21] The motion judge correctly determined that s. 46.1(2) of the Code applies to the appellant’s claims against the non-LSO respondents. Section 46.1(2) prohibits “an action based solely on an infringement of a right” under the Code. As the appellant’s claims against the non-LSO respondents are solely based “on an infringement of a right” under the Code, they were properly dismissed without leave to amend. . Zheng v. G4S Secure Solutions (Canada) Ltd
In Zheng v. G4S Secure Solutions (Canada) Ltd (Div Ct, 2021) the Divisional Court considered a judicial review application regarding an Ontario HR matter. In this extract the court considers the application of the HRC s.34(11)(a) prohibition against HR applications if a similar-fact civil action has been commenced:Issue #2: Was the HRTO’s Original Decision on the application of s. 34(11), as prejudged, unreasonable?
[35] The applicant submits that reliance on s. 34(11)(a) (the presence of an existing civil action which relies on the same facts and infringement) as a ground for the dismissal of the application under the Code was unreasonable.
[36] I return to what was said earlier concerning the limitations on the Court and the responsibility of parties who represent themselves. Simply stating that the Tribunal “committed a palpable and overriding error or made a material fact finding unsupported by the evidence when it found that s. 34(11) applied to my Application” does not help. Contrary to the view expressed by the applicant it was entirely reasonable for the Tribunal to conclude that:The application of section 34(11) does not require that an applicant include an explicit reference to section 46.1 of the Code in the civil claim. Section 34(11) applies where the facts and issues in a court action are the same as those in the application, the applicant has alleged a violation of the Code in the civil claim, and he or she has sought damages based on that alleged violation. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 11. [37] This is not a question of shaping the civil action so as to avoid reference to the allegation of discrimination. The facts are the same. A self-represented party would not be aware of our courts’ general antipathy to a multiplicity of proceedings. Having decided to go to court, relying on the same impugned actions as those alleged to have been discriminatory in a complaint to the Human Rights Tribunal of Ontario means that the Court is in a position to deal with the matter fully, including any allegation of discrimination. In short, you do not get two kicks at the same set of facts.
[38] This is consistent with an understanding of the evolution of the treatment of discrimination under the Human Rights Code of Ontario. The Code was first enacted in 1962. Its reach was limited. It was repealed and revised in 1981. Under the provision of the 1981 Code a complaint was made to the Human Rights Commission which conducted an investigation and where appropriate requested the “Minister” to appoint a “board of inquiry” to conduct a hearing to consider the complaint. Over time the Commission became overwhelmed with the volume of complaints it received. In 2006 the role of the Commission was changed. Instead of being responsible for the investigation of individual human rights complaints it was directed to focus on systemic causes of discrimination. The Human Rights Tribunal was created. Applications by individuals were made to the Tribunal which, where appropriate, could appoint a person to conduct an inquiry. As part of this reorganization, the 2006 amendment introduced s. 34(11) such that the process under the Human Rights Code was not to be available where a proceeding in court “seeking an order under section 46.1 with respect to the alleged infringement” had been commenced. This was in furtherance of restructuring the process such that it was better able to respond to complaints and broader discriminatory practices. The direction that allegations of discrimination could be dealt with as part of a proceeding in a different forum is consistent with Tranchemontagne v. Ontario (Director, Disability Support Program). The case was decided in 2006, the same year these amendments were enacted. In it the Supreme Court of Canada determined that jurisdiction as to the applicability of the Code was not limited to the decision makers put in place by the Code.[18]
[39] The policies under the Occupational Health and Safety Act and any policies internal to G4S to which the applicant refers in his Statement of Claim, may be different from those under the Code but to the extent they are relevant, the Court can deal with them all.[19]
[40] In Moreland v. St. Michael’s Hospital[20] the Tribunal came to a different decision than the one it made here:Moreover, as further noted in Baker, supra, the fact that a civil proceeding could potentially have been commenced alleging both wrongful dismissal and discrimination is a matter of personal choice. It is not within the Tribunal’s jurisdiction or mandate to instruct parties where to bring their cases.[21] [41] Statements like this made by the Tribunal in a different case, at a different time are not binding. They do not render the decision made in this case, on its particular facts, unreasonable. In Sonia Coombs-Carpio v. Toronto Catholic School Board Employees’ Credit Union[22]in deciding to allow a human rights complaint to continue in the face of a civil action the Tribunal noted:I am satisfied that the applicant’s civil action does not duplicate her Application in which she alleges breaches to the Code. The civil claim is a wrongful dismissal action in which the applicant does not refer to the respondent’s allegedly discriminatory actions described in the Application and seeks damages pursuant to the common law of employment. While both the civil claim and the Application address the termination of the applicant’s employment, the Tribunal has held that the fact that separate legal proceedings arise out of the same facts is not a basis for declining jurisdiction.[23] [42] In saying this the Tribunal relies on Moreland. The situation is the same. This is a matter of discretion. The Tribunal is not required to, nor should it blindly follow what has been said in other cases dealing with other facts.
[43] As I see it, this is underscored by the case of Baker v. Sears Canada[24] which considered essentially the same situation: an application in which the respondents to a human rights complaint sought to have it dismissed in the face of a civil action relying on the same facts. As perceived by the Tribunal the choice lay exclusively within the purview of the applicant:The applicant argues that the two cases address completely different issues, admittedly both related to her employment with the corporate respondent, but referring to discrete legal rights and obligations. She states that she has tailored her pleadings to the distinct allegations made and to the remedies sought in each matter, and requests that the Application be permitted to continue.
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The threshold question is whether the applicant did in fact decide to raise the Code and seek remedies for alleged breaches by way of a court action. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section 34(11). If not, however, then the factual similarity between the two pieces of litigation is irrelevant to the question of the Tribunal’s jurisdiction to consider the matter. Similarly, any prejudice alleged by the respondents is immaterial to the jurisdictional question. The Tribunal either has jurisdiction to consider a matter or it does not.[25]
[Emphasis added] [44] What is surprising is that the Tribunal failed to recognize that it had any responsibility to contribute to the processing of these complaints in a fashion, and with the expedition, the broader public interest requires:The Tribunal is not charged with a broad mandate to manage scarce judicial resources across adjudicative agencies, nor is it empowered to do so. Any person is entitled to file an Application, subject to clearly-defined jurisdictional limits. On a request for early dismissal without a hearing, the Tribunal must determine whether a jurisdictional bar prescribed in the Tribunal’s enabling legislation, in this case section 34(11), applies. The question of whether the Tribunal has the jurisdiction to deal with an application is distinct from the issue of whether it should defer dealing with an application in its jurisdiction, in the face of concurrent legal proceedings.[26] [45] There is no foundation for a finding that the decision to dismiss these complaints, given that the Statement of Claim that has been issued deals with the same facts, is not reasonable. This is particularly so having regard to the high level of deference applicable to the Human Rights Tribunal of Ontario. To my mind the better question, although seemingly never asked, is whether the decisions decided differently are themselves reasonable. Is it reasonable to allow a complainant to purposely shape his or her complaint in order to have two proceedings based on the same facts move forward?[27] What happens if those facts, once subjected to the test of cross-examination and the understanding of two decisionmakers are found to be different and lead to inconsistent results? In the context of a dismissal from employment, does it make sense that a dismissal could be determined to be founded on a discriminatory act but is nonetheless not wrongful? If in such a circumstance the Tribunal finds there was discrimination and the Court finds the termination wrongful, on what basis is any remedy to be determined? Would there not be the potential for overlap; that is the risk that the wronged party would be compensated twice for the same wrongful conduct? . Ingram v. Human Rights Tribunal of Ontario
In Ingram v. Human Rights Tribunal of Ontario (Div Court, 2022) the Divisional Court considered a human rights judicial review case where an aggrieved employee both sued (in a separate proceeding) for wrongful dismissal (with the lawsuit avoiding any mention of the HRC) and as well filed the present HRTO complaint, apparently in the hope of maintaining both proceedings. At issue in this judicial review were the 'either/or' provision of HRC s.34(11), which read:34(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.
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Civil remedy
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.
Same
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I. The court's reasoning is set out at paras 31-52.
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