The Human Rights Tribunal of Ontario (HRTO) has dismissed an application by a former employee of AAA Halton Taxi Service, citing an ongoing civil proceeding in the Ontario Superior Court of Justice (SCJ) involving the same allegations.
The worker, C.D., filed an application alleging discrimination and reprisal under the Human Rights Code. However, during the processing of this application, it emerged that C.D. had also commenced a Statement of Claim in the SCJ against the same respondent.
“The Tribunal finds that the Claim before the SCJ is seeking an order under section 46.1 with respect to the alleged infringement of their Code-related rights,” wrote Adjudicator Harnum in the decision. The Claim seeks damages for wrongful dismissal and punitive damages alleging bad faith in the decision to terminate employment resulting in mental stress.
While the Claim did not explicitly mention the harassment and discrimination alleged in the HRTO application, the Tribunal determined that both proceedings arose from the same set of facts. “Many paragraphs in the Application and the Claim are either identical or near identical including those related to the dismissal and mental stress,” noted Harnum.
The Tribunal’s decision hinges on subsection 34(11) of the Human Rights Code, which mandates that a person cannot make an application to the Tribunal if a civil proceeding has been commenced in court seeking an order under section 46.1 regarding the alleged infringement and the proceeding has not been finally determined or withdrawn.
“The language of subsection 34(11) is mandatory,” emphasized Harnum. She cited the Court of Appeal’s confirmation in Corrigan v. Ontario, 2023 ONCA 39, that where subsection 34(11) applies, the Tribunal has no discretion to hear a human rights claim. The purpose of this provision is to prevent duplicate court and Tribunal proceedings.
The Tribunal also referenced legal precedents reinforcing this interpretation. In Visic v. HRTO and University of Windsor, 2015 ONSC 7162, and Ingram v. Human Rights Tribunal of Ontario, 2022 ONSC 3737, courts have upheld the Tribunal’s lack of jurisdiction in such circumstances. Additionally, the Divisional Court’s decision in Zheng v. G4S Secure Solutions (Canada) Ltd., 2022 ONSC 93, affirmed the principle that applicants cannot pursue multiple proceedings based on the same facts.
“You do not get two kicks at the same set of facts,” the Divisional Court stated in Zheng, a sentiment echoed by the Tribunal in C.D.’s case.
C.D. was given the opportunity to provide submissions on the jurisdictional issue and to update the Tribunal on the status of the SCJ proceedings. On June 21, 2024, C.D. provided documents indicating that a settlement conference had occurred on June 12, 2023, resulting in the matter being “not settled” and potentially set for trial upon payment of a fee. However, no further information was provided to indicate whether the fee was paid or if the matter had been resolved.
“As such, the Tribunal finds on a balance of probabilities that the Claim is ongoing,” concluded Harnum. “Accordingly, I find that the present Application is barred by subsection 34(11) of the Code.”
For more information, see De Marco v. 7330880 Canada Ltd., 2024 HRTO 1662 (CanLII).
