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Human rights applications: Employees don’t get two kicks at the same can

December 18, 2023
By John Hyde

A Toronto Transit Commission (TTC) sign at a subway station. Photo: Atomazul/Adobe Stock

In Kanhi v Toronto Transit Commission, 2023 HRTO 1610, the Human Rights Tribunal of Ontario dismissed a human rights application because a civil proceeding had been commenced based on the same facts and allegations.

Following the termination of his employment, an employee commenced both a civil proceeding regarding his dismissal and an application under the Ontario Human Rights Code alleging discrimination on the basis of disability.

Both the civil claim and the human rights application were based on the same facts and contained the same allegations: that the employer had failed to accommodate the employee’s disability and that the termination of his employment was discriminatory.

The employer requested that the Tribunal dismiss the employee’s human rights application pursuant to section 34(11) of the Code.

The Code

Section 34(11) of the Code states that a person may not make a human rights application under the Code if they have already commenced (and have not withdrawn) a civil proceeding in which they seek an order under section 46.1 of the Code.

Section 46.1 of the Code states that a civil court can order compensation or restitution if it finds that there has been a breach of the Code.

The Tribunal’s decision

The Tribunal stated that the intention of s.34(11) is to prevent duplicate proceedings regarding the same allegations of discrimination.

The Tribunal also stated that the civil claim does not need to specifically plead or name s.46.1 of the Code to be caught by s.34(11). A plaintiff seeking damages for a breach of the Code is sufficient for the purposes of s.34(11).

In this case, the employee attempted to distinguish between the allegations raised in the civil claim relating to the wrongful termination and the allegations contained in the human rights application relating to the breach of the Code. However, it was clear that all of the allegations involved the same facts and events and that they were tied together — the discrimination allegation would need to be considered to determine the wrongful dismissal claim and the wrongful dismissal allegation would need to be considered to determine the discrimination claim.

The Tribunal also noted that it would not be fair to require the employer to defend itself in two different proceedings against allegations that are based on the same set of facts and which could have been raised in a single proceeding.

As such, the Tribunal found that the employee’s human rights application was barred by s.34(11) of the Code.

Lessons for employers

This decision is welcome reassurance for employers that the Code does not permit employees to have “two kicks at the same can” when it comes to allegations arising out of the same set of facts that could have been plead together.

Accordingly, when an employee alleges discrimination in connection with a wrongful dismissal claim, an employer can be assured that they will not need to go through both duplicative proceedings, or incur duplicative legal expenses, before both the civil courts and the Human Rights Tribunal, even if the employee wants to deal with the wrongful dismissal and the discrimination claims separately.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.

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