Given the presence of various courts and tribunals in Ontario, it can be confusing to understand all the options relating to where to bring a claim if you have been the victim of discrimination or harassment and have been terminated.
This article looks at some of the options and notes one of the risks – if you bring a claim in court, you may not be able to file an application with the Human Rights Tribunal of Ontario (HRTO).
As always, please contact an experienced employment lawyer for advice on the best options for your circumstances.
Human rights tribunal versus court
We’ve written about some of the options available to employees who have experienced job discrimination and been terminated or constructively dismissed. The discrimination and the termination might be the same act (that is, the termination was discriminatory) or separate acts (for example, discrimination led to the employee ‘resigning’ or being constructively dismissed).
The Ontario Human Rights Code (Code) specifically prohibits discrimination on certain grounds in employment. Filing a complaint with the HRTO or a claim through the court system are two common options. Similar options are available for federally regulated employees.
We would be happy to discuss why an employee might choose one route over the other. It may depend on what the employee tries to achieve by bringing the claim. For example, while a civil court claim is generally more costly but potentially offers greater financial compensation if successful, proceeding by way of a tribunal might offer more flexible remedies, such as the possibility of a change in one of the employer’s policies or reinstatement to the role after termination.
Can the Human Rights Tribunal order payment for lost income and can courts decide claims based on the Human Rights Code?
Is one form capable of dealing with the employee’s grievances, such as where the employee has been subject to a human rights violation and terminated?
Under the Code, the HRTO is allowed to order the payment of monetary compensation to someone whose right has been infringed (for example, they have been discriminated against) for loss arising out of the infringement. This means that the HRTO can award compensation for things like lost income, such as representing the amount not earned by the employee between when they were forced to ‘resign’ following discrimination or harassment and when they obtained a new job.
A court can order monetary compensation or restitution in a civil proceeding where a Code right has been breached. However, according to section 46.1 of the Code, a person cannot commence a civil proceeding in a court solely based on an infringement of a Code right – they need to have another cause of action, such as wrongful dismissal.
Can you start a claim in the Human Rights Tribunal after commencing civil court proceedings?
An issue that can arise is whether an employee can bring claims in multiple different fora. Can you get multiple bites at the cherry?
Section 34(11) of the Code prevents a person alleging an infringement of a Code right before the HRTO 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.”
Therefore, if the employee has already started court proceedings “with respect to the alleged infringement,” it may not be possible to bring a later claim before the HRTO.
Terminated employee started court proceedings then an HRTO application
This situation recently arose before the HRTO in the case of Koufis v James Campbell Inc. o/a McDonald’s Restaurant.
The employee argued that he was terminated in violation of the Code because of discrimination based on disability. He first filed a court claim for wrongful dismissal, including seeking damages for mental distress arising from the termination. Following this, the employee applied to the HRTO, alleging discrimination.
The HRTO advised the employee that it intended to dismiss the application under section 34(11) of the Code due to the earlier filed civil proceeding.
HRTO application needed to be dismissed if it implicitly raised a Code-related interest
The employee argued against the proposed dismissal of his HRTO application. He observed that his civil claim did not allege a Code infringement and did not seek a remedy under the Code.
The HRTO adjudicator quickly disagreed with the employee’s argument, observing that section 34(11) of the Code did not require the applicant to explicitly ask the court for a remedy under the Code in order for the subsequent HRTO application to be dismissed. The purpose of this section is to avoid duplicating court and HRTO proceedings.
The adjudicator stated:
“… the determinative question is whether the civil claim explicitly or implicitly raises Code-related interests and seeks remedial redress for those alleged human rights concerns.”
HRTO application dismissed
The HRTO adjudicator decided that the factual underpinning of both of the employee’s proceedings was the same. Both the court and HRTO cases involved the termination of his employment and requests for monetary compensation. Both required assessing the employer’s non-Code-related justification for the termination of employment.
As a result, the adjudicator dismissed the employee’s HRTO application.
Contact Haynes Law Firm in Toronto for Advice on Workplace Discrimination and Harassment
Haynes Law Firm represents employees and employers in all human rights claims. We represent employees that have experienced discrimination and harassment, including sexual harassment. We will advocate for your position regardless of the forum, whether in negotiations, tribunal or court proceedings. We help our employer clients defend claims and manage performance issues and termination. To discuss how Paulette Haynes can assist you, please contact us online or call us at 416.593.2731.