It is difficult to experience discrimination at your workplace, as it is where you spend most of your time. Your workplace ought to be an environment free of discrimination. Your discrimination claim may need to escalate to litigation at a certain point. It is important to become familiar with the different avenues for making a workplace discrimination claim, such as through a civil proceeding or the Human Rights Tribunal in Ontario. Certain procedural rules dictate which options may be available to you or not. 

This post will discuss the different processes for a workplace discrimination claim. We will also discuss the case law on how the court may determine which options are available for your claim. This will be helpful for employees considering making a claim of discrimination by their employer. Finally, we’ll address important takeaways from using different litigation avenues, how they interact, and how they would impact your discrimination claim.

Civil proceedings – employment law claim 

One option is to commence civil proceedings for an employment law claim. This could be a claim for wrongful dismissal. One could claim the employer was discriminatory and engaged in ongoing bad-faith conduct. For example, if an employer refuses to accommodate a disability. This could also be related to how the employer terminated the employee. An employee may claim damages for an employer intentionally inflicting mental distress on the employee. The employee may be able also to claim lost wages. 

Civil proceedings would be filed at the Supreme Court level and follow the Ontario Rules of Civil Procedure

Human Rights Tribunal 

Another option is to go through the Ontario Human Rights Tribunal. The employee would need to claim that the employer breached the Human Rights Code, R.S.O. 1990, c.H.19 (the “Code”). The Code applies to employment scenarios and provides protection on the following grounds:

  • Age
  • Ancestry, colour, race
  • Citizenship
  • Ethnic origin
  • Place of origin
  • Creed
  • Disability
  • Family status
  • Marital status (including single status)
  • Gender identity, gender expression
  • Receipt of public assistance (in housing only)
  • Record of offences (in employment only)
  • Sex (including pregnancy and breastfeeding)
  • Sexual orientation.

The Human Rights Tribunal of Ontario (“HRTO”) deals with discrimination under the Code. For applications under the Code, the HRTO has its own Rules of Procedure to be followed. These are separate from the Rules of Civil Procedure for a Supreme Court matter described above. 

A claim through the HRTO is narrower in scope compared to civil proceedings for wrongful dismissal or other related claims. 

Can I make claims in both civil proceedings and the Human Rights Tribunal?

Making claims in both civil proceedings and through the Human Rights Tribunal is possible. However, in most cases, some rules do not allow one to make claims in both arenas. 

According to s. 34(11) of the Code

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.

This means that if an employee has also started a civil claim seeking relief under s. 46.1 of the Code, then the HRTO will hear different matters. 

Under s. 46.1 of the Code:

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.  2006, c. 30, s. 8.

This means that if a party has already claimed that their human rights have been infringed under the Code in their civil proceeding, the civil court (i.e. the Supreme Court) has jurisdiction to order compensation for injury to their dignity, feelings, self-respect, or other related losses. This is meant to prevent duplicate court and HRTO proceedings if both refer to breaches of the Code

The court has found that it would lead to procedural unfairness and an abuse of process if the respondent was required to defend themselves twice for the same issues and facts. The claimant is also not permitted to claim double damages. In particular, the HRTO may conclude that a claim for infliction of mental harm and/or moral damages in the civil matter is the same as compensation sought before the HRTO. 

Even if a party does not explicitly claim s. 46.1 in their civil matter, the HRTO may still find that s. 34(11) applies and will not hear the matter. If the facts and issues in the civil claim are essentially the same as the HRTO application, then the HRTO will not hear the matter. 

It is, therefore, rare for the HRTO to hear a matter when a related civil matter has commenced. However, it is still possible for the HRTO to hear a matter that has commenced in civil court if it involves the same facts but the issues are distinct. 

In the case Smith v Sears Canada Inc, 2010 HRTO 1834, the court found that while the two claims involved the same facts and events, the issues claimed were distinct. The civil claim did not allege discrimination, and the damages claimed were not related to discrimination. Also, the HRTO found that her human rights claim involved discrimination of a systemic nature, which would not be addressed in her civil proceeding. Therefore, the HRTO concluded that they had jurisdiction to hear the matter, as s. 34(11) did not apply. 

Key Takeaways 

While it is possible to make your claim in both Supreme Court (i.e. a civil matter) and the Human Rights Tribunal, the HRTO may decide not to proceed with your claim if the civil matter is essentially making the same claims on the same set of facts. It is possible if the HRTO does not hear the human rights claim, for some remedies to be left out of the equation. Therefore, it is important to carefully consider with an experienced lawyer how to structure one’s claim to fit their needs best, as there could be significant overlap in civil and human rights claims. The court and HRTO are careful to ensure no duplicated proceedings as they are considered procedurally unfair for a respondent. 

Contact Haynes Law Firm in Toronto for Advice on Workplace Discrimination Claims

Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with issues that arise from workplace discrimination and termination. For employees, our goal is to ensure that they understand their rights and receive maximum compensation in wrongful dismissal cases and human rights claims. Haynes Law Firm also assists employers in avoiding liabilities arising from terminations not permitted by the legislation. Our team works with employers to prevent human rights violations in the workplace. We are dedicated to finding the best resolution for you.

To book a consultation, please contact us online or by phone at 416-593-2731.