One tactic used by employment lawyers, where discrimination is involved, is to commence concurrent claims for employment losses in both the Ontario Superior Court of Justice (including Small Claims Court) as well as before the Ontario Human Rights Tribunal. However, as this recent Ontario Divisional Court decision reveals, this practice may be coming to an end.
The primary difficulty with commencing concurrent claims is section s. 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, (herein 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn;”
In an attempt to get around this section, practitioners would attempt to bifurcate the pleadings in the two forums: seeking discrimination related damages at the Tribunal, and all other heads of damages in the civil lawsuit. But the Divisional Court, in this recent decision, appears to have brought this practice to an end. Indeed, the plaintiff’s lawyer went to great lengths in their pleadings to “separate” the causes of action. Indeed, the Statement of Claim made made no mention of the plaintiff’s disabilities (except in relation to a claim for post-termination disability benefits), raised no allegations of discrimination, raised no remedies for Code infringements; and made no mention of the Code itself.
But the Tribunal nonetheless dismissed the case before them on the grounds that there was a concurrent claim before the courts. The plaintiff appealed that ruling on the basis that there was no concurrent claim before the courts since they were not seeking Code related heads of damages in the court proceeding.
The Divisional Court upheld the Tribunal’s ruling. Essentially the Divisional Court asserted that the purpose of eliminating concurrent proceedings within section 34.1 of the Code was not to prevent the same damages being sought in two forums, but rather it was to prevent the potential risk of having inconsistent findings. The Divisional Court was convinced that despite the valiant effort to excise any “discrimination” related references in the Statement of Claim, the reality would be that in pursuing his claim before the court the plaintiff would have to raise all of the interactions he had with his employer over time, and that would include the alleged discriminatory conduct: hence leading to the prospect that one forum may conclude that the conduct was problematic, whereas another forum could conclude that conduct was benign.
Although nothing is for certain, this recent case would seem to suggest that the practice of splitting forums has come to an end. If a disgruntled employee wishes to seek damages for discrimination under the Code, along with all other related employment law losses, all the claims ought to be included, and pursued, in a court proceeding.
Ingram v. Human Rights Tribunal of Ontario, 2022 ONSC 3737
https://www.canlii.org/en/on/onscdc/doc/2022/2022onsc3737/2022onsc3737.html