September 24, 2022

By Brian Babcock

What happens when you believe that you have been wrongfully dismissed and at the same time have a human rights complaint arising from your employment?

The Ontario Human Rights Code section 46.1 permits you to include a claim for breaches of the Code in your lawsuit to Superior Court to avoid a duplication of proceedings. Section 34(11) of the Code balances this by barring you from bringing an application before the Human Rights Tribunal to claim Code infringement arising out of the same factual context alleged in your civil action. Thus, you get to choose your preferred forum, but you do not get two tries.

THE ISSUE

But what happens if you plead discrimination in your civil lawsuit but do not specifically refer to section 46.1 of the Code? In other words, what does section 34(11) mean by “factual context”?

THE CASE

That question is addressed by the Ontario Divisional Court in Ingram v. Human Rights Tribunal of Ontario. Ingram first filed a complaint under the Code alleging that he had been harassed and discriminated against because of personal disabilities and that his employer wanted to force him to resign and had forced him to use up vacation time and sick time and failed to accommodate him.

Almost exactly a year later, Mr. Ingram commenced an action for wrongful dismissal in Superior Court alleging breach of contract, negligence, failure to pay vacation pay, intentional infliction of mental distress, punitive damages, and aggravated or moral damages. That action alleged he had been wrongfully terminated the day after his filing the human rights application. The Superior Court claim did not mention his disabilities, discrimination, remedies for Code infringement or the Code at all. It did however repeat the same allegations of harassing and demeaning behavior intended to bring about his resignation and to avoid appropriate payments as were set out in the Human Rights Tribunal complaint. It said this conduct was insensitive, demeaning, and humiliating.

The employer sought dismissal of the human rights complaint. Ingram opposed the dismissal on the basis that there were crucial differences between his application and the Superior Court action. He specifically pointed to the absence of Code-based allegations or remedies in the action.

The Human Rights Tribunal considered whether this falls within section 34(11) which reads:

(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.

The sub-section is intended to eliminate the risk of control contradictory rulings involving the same factual matrix.

The human rights adjudicator granted the request by the employer and dismissed the complaint holding that whether or not the court action explicitly raises the Code, if it was based on the same factual allegations, section 34(11) applied. This is consistent with other jurisdictional cases, which generally focus on the true nature of the claims, not the words chosen in the pleadings.

A reconsideration decision confirmed the adjudicator’s decision which led to an application for judicial review to the Divisional Court.

A judicial review differs from an appeal in that the judicial review is mainly concerned with procedural fairness and the reasonableness of the tribunal decision, not whether it is right or wrong. An appeal typically involves questions of correctness, at least on law, and often on questions of mixed fact and law. It is therefore tougher for an applicant to succeed on judicial review.

THE RESULT

The Divisional Court upheld the findings of the Human Rights Tribunal. Although Mr. Ingram could point to a series of cases where the HRTO application was allowed to proceed when the court action did not explicitly refer to the Code, they were all Human Rights Tribunal decisions. The Divisional Court had apparently never considered that question. In the Ingram case the Divisional Court adopts the reasoning of the Tribunal giving it greater force.

In the result, the overlapping facts in the two documents led the Divisional Court to agree with the Tribunal that it was not unreasonable to conclude that section 34(11) applied and the application to the Tribunal was dismissed.

TAKEAWAYS

  • Whether represented by counsel or self represented, some of the most difficult issues in employment law are procedural.
  • There are several areas in which the availability of civil actions in Superior Court may overlap with or be an alternative to an application to a tribunal.
  • In some situations, an election or choice of forum is possible.
  • In other situations, if you select the wrong forum, you may lose your ability to bring the claim in a timely fashion.
  • Therefore, it is important that you sort out these procedural issues and think about the big picture at the application or claim stage.

WHAT WEILERS LAW CAN DO FOR YOU

At Weilers Law, our litigation lawyers and our employment law lawyers are an overlapping group who work closely together and attempt to seek the best remedies in the best manner to focus on your end goal – proper compensation if you are an employee or minimizing cost (or avoiding a negative precedent) if you are an employer.

Whether you are an employee who believes that they have been discriminated against, or an employer facing allegations of discrimination, please give us a call to see if we are the right lawyers for you.