The Human Rights Tribunal of Ontario (HRTO) has dismissed an application by a former employee of Universal Protection Service of Canada Corporation — operating as Allied Universal Security — citing jurisdictional limitations due to an existing civil proceeding.
The decision underscores the statutory bar against duplicative legal actions under section 34(11) of the Ontario Human Rights Code.
J.P. alleged that his termination for non-compliance with the company’s COVID-19 vaccination policy amounted to discrimination and reprisal based on disability. After refusing to adhere to the vaccination mandate, he requested accommodation to continue working from home, which was denied by the employer.
The application to the HRTO was filed on Dec. 30, 2022. However, prior to this, J.P. had commenced a civil lawsuit against the same employer in the Ontario Superior Court of Justice on Nov. 21, 2023, seeking damages for wrongful dismissal, lost wages, and aggravated, moral, and punitive damages.
The employer argued that the HRTO application should be dismissed because it was duplicative of the ongoing civil proceeding. They provided the Tribunal with the Statement of Claim from the court case to support their position.
In response, J.P. contended that the civil lawsuit was focused on wrongful dismissal, while the HRTO application centred on the employer’s failure to accommodate his disability and perceived disability. He maintained that the two proceedings were distinct and should be allowed to proceed separately.
Adjudicator Kelly Barker reviewed the submissions and the relevant legal framework. The Tribunal noted that under section 34(11) of the Code, a person cannot make an application to the HRTO if they have already commenced a civil proceeding seeking similar remedies for the same alleged infringement.
“The language in section 34(11) is not discretionary,” Barker stated in the decision. “The Application is barred if it falls within the circumstances described in the subsection.”
The Tribunal emphasized that the essential factual underpinning of both the HRTO application and the civil lawsuit was the same: both involved the termination of J.P.’s employment following his non-compliance with the vaccination policy, and both sought monetary compensation, including damages for wrongful dismissal and lost wages.
“Following a careful review of both the Application and the Statement of Claim, I find that in this case, the essential factual underpinning of both proceedings is the same,” Barker wrote. “Both matters involve the termination of the applicant’s employment and requests for monetary compensation.”
The decision referenced previous cases to support its conclusion, including Grant v. Sunnybrook Health Science Centre, where the Tribunal held that section 34(11) is a mandatory bar, and Almseideen v. McKesson Canada, which stated that it would be procedurally unfair and an abuse of process to force respondents to defend themselves twice against the same applicant on the same set of facts.
“The purpose of section 34(11) of the Code is to eliminate duplicate court and Tribunal proceedings,” the decision noted, citing Visic v. HRTO and University of Windsor.
J.P.’s argument that the civil proceeding and the HRTO application were based on different grounds was not sufficient to overcome the statutory bar. The Tribunal found that both actions would require an assessment of the merits of the employer’s justification for termination and the remedies sought were substantially similar.
“In addition, the applicant seeks similar remedies for the alleged adverse treatment in both proceedings, including damages for wrongful dismissal and compensation for lost wages,” Barker observed. “In the Application, the applicant seeks punitive damages and damages for injury to dignity, feelings, and self-respect. In the civil proceeding, the applicant also seeks aggravated, moral and punitive damages.”
As a result, the Tribunal concluded that it did not have jurisdiction to hear the application and dismissed it accordingly.
“For the reasons set out above, the Application is dismissed,” the decision stated.
For more information, see Perry v. Universal Protection Service of Canada Corporation dba Allied Universal Security, 2024 HRTO 1644 (CanLII).
