Human Rights Code Prevents Applicant from Getting “Two Kicks at the Same Facts”

A recent decision of the Human Rights Tribunal of Ontario (“HRTO”) provides guidance on whether an application will be determined to be outside of the tribunal’s jurisdiction due to a civil proceeding having been commenced by the applicant.

Relevant Provisions of the Human Rights Code

Subsection 34(11) of Ontario’s Human Rights Code (the “Code”) provides as follows:

A person who believes that one of his or her rights under Part I has been infringed may not make an application [to the HRTO] 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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. 

Of note, section 46.1 of the Code authorizes the court to make orders of monetary compensation for infringement of Code-protected rights, including compensation for injury to dignity, feelings and self-respect. Importantly, section 46.1 does not require the applicant/plaintiff to have explicitly plead discrimination in the civil proceeding in order to apply.


In Almseideen v. McKesson Canada, the applicant filed an application with the HRTO on August 17, 2020. In the application, he explicitly indicated that there had not been a court action based on the same set of facts as the application.

However, in its response to the application, the respondent informed the HRTO that the applicant had in fact commenced a civil proceeding almost a full year earlier, on September 19, 2019. Moreover, the respondent indicated that the applicant/plaintiff had filed a Fresh as Amended Statement of Claim on March 16, 2020. In that regard, the adjudicator took note of the following:

  • The Fresh as Amended Statement of Claim named the respondent in the application as the defendant in the civil proceeding,
  • The Fresh as Amended Statement of Claim claimed that the applicant/plaintiff’s employment was wrongfully terminated, but not did contain any explicit claims of discrimination or breach of the Code, and
  • The remedy sought by the applicant/plaintiff in the civil proceeding was damages for wrongful termination and breach of contract in amounts the applicant described as representing lost wages, while in the application, he sought similar amounts for what appeared to be the same alleged lost wages.

In light of this information, the HRTO sent the parties a Request for Additional Submissions that included a notice of intention to dismiss. More specifically, the HRTO requested submissions on whether subsection 34(11) of the Code applied in the circumstances.

In his submissions, the applicant/plaintiff admitted that he had commenced a civil proceeding against the respondent and that it related to the same termination of employment. However, he argued that the civil proceeding did not seek “an order [for a] Code infringement”, and instead sought damages and reimbursement for inducement and moving expenses. The applicant/plaintiff did not provide an explanation regarding his failure to inform the HRTO of the civil proceeding at the time he filed the application or at any time thereafter.

HRTO Decision

Ultimately, the adjudicator concluded that subsection 34(11) did apply. Based on a careful review of the Fresh as Amended Statement of Claim, she determined that the applicant/plaintiff was not being candid about the overlap between the application and the civil proceedings. In her view, the Fresh as Amended Statement of Claim not only sought damages and reimbursement for inducement and moving expenses, but also for wrongful dismissal in respect of the same period of employment as the application. Moreover, she noted that the applicant/plaintiff had failed to provide any evidence that his Fresh as Amended Statement of Claim had been withdrawn. As a result, she determined that it would be “procedurally unfair and an abuse of process to force the respondent to defend themselves twice against the same applicant on the same set of facts and for the same alleged damages”. Concluding that the HRTO did not have jurisdiction to hear the application, the adjudicator therefore held that it had to be dismissed.

In Our View

Even more recently, the HRTO reached the same conclusion on this issue in Koufis v. James Campbell Inc. o/a McDonald’s Restaurant, where the applicant’s civil claim was similarly found to implicitly raise Code-protected interests and to seek related remedial redress, thereby triggering the application of subsection 34(11).

Of note, subsection 34(11) is not the only Code provision that can prevent an HRTO application from proceeding because of the existence of a parallel proceeding. For example, as detailed in a separate Focus Alert, section 45.1 provides the HRTO with the discretion to dismiss an application, in whole or in part, if it is of the opinion that another proceeding has appropriately dealt with the substance of the application. Employers who face, or risk facing, proceedings before the HRTO as well as a court or other tribunal in respect of a termination where discrimination or a breach of the Code is alleged to be at issue should be aware of these tools that can, in some circumstances, help prevent the unnecessary duplication of proceedings.

For more information, please contact Raquel Chisholm at 613-940-2755 or Marie Bordeleau at 613-404-5875.

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