The Human Rights Tribunal of Ontario (HRTO) has dismissed an application alleging age discrimination in employment, ruling that it is barred under the Human Rights Code due to an ongoing civil proceeding based on the same set of facts.
The applicant, D.H., filed a complaint with the HRTO on Nov. 4, 2019, alleging that his termination by Valiant Machine & Tool Inc. on Jan. 25, 2019, was discriminatory and based on age. He sought reinstatement and monetary compensation of $350,000 for injury to dignity, feelings, and self-respect, as well as financial losses. However, on Aug. 20, 2021, D.H. also initiated a civil action, alleging wrongful dismissal and breach of contract, among other claims, in relation to the same termination.
The HRTO issued a Case Assessment Direction (CAD) on Jan. 10, 2025, advising the parties that the application appeared to be outside of the Tribunal’s jurisdiction due to section 34(11) of the Code, which prevents an applicant from pursuing a human rights complaint if a civil proceeding covering the same alleged rights infringement is underway. Both parties provided written submissions on this jurisdictional issue.
Tribunal’s jurisdiction and statutory bar
Section 34(11) of the Code states that a person may not file an application with the Tribunal regarding an alleged rights infringement if they have already commenced a civil proceeding seeking an order under section 46.1 of the Code, unless the matter has been finally determined or withdrawn. The Tribunal emphasized that this provision is not discretionary and must be applied when its conditions are met.
Citing precedent, the Tribunal noted that even if the civil action does not explicitly reference section 46.1 or the Code, the determinative factor is whether “the facts and issues in the two proceedings are the same.” The Tribunal referenced Ingram v. Human Rights Tribunal of Ontario, 2022 ONSC 3737 and Zheng v. G4S Secure Solutions (Canada) Ltd., 2022 ONSC 93, which reaffirmed that section 34(11) is intended to prevent duplicate proceedings and the risk of inconsistent findings.
Overlap in allegations
Upon reviewing D.H.’s civil claim and HRTO application, the Tribunal determined that both were based on the same factual allegations: that D.H. was wrongfully terminated and suffered adverse treatment. While the HRTO application explicitly cited age discrimination, the civil claim sought damages for wrongful dismissal, bad faith termination, and punitive damages. The Tribunal found that this substantial overlap was sufficient to trigger section 34(11), regardless of the specific legal framing in each proceeding.
“The Tribunal must dismiss an Application under section 34(11) of the Code where most of the facts and allegations contained in the Statement of Claim relate to substantially the same fact pattern and involve the same employment context as those allegations raised in the Application,” the Tribunal wrote, citing Giroux v. Windsor (City), 2025 HRTO 69.
D.H. argued that his civil claim expressly waived any claims under the Code, seeking only wrongful dismissal damages. However, the Tribunal rejected this argument, finding that an applicant cannot avoid the statutory bar “by tactical pleadings.” It cited Wilson v. Valentine Coleman Inc., 2024 HRTO 1453, which clarified that section 34(11) applies even if the civil claim is drafted to omit references to discrimination. The Tribunal also referenced Lakhtakia v. Reflex Integrated Inc., 2024 HRTO 1424, which found that attempts to separate claims for wrongful dismissal and discrimination arising from the same termination violate the intent of section 34(11).
Policy considerations and final ruling
The Tribunal emphasized that section 34(11) serves an important policy function: eliminating duplicative litigation and preventing inconsistent legal findings. Citing Ingram and Zheng, it noted that allowing parallel proceedings would create legal uncertainty and inefficiency. Because D.H. had already pursued a civil remedy for his termination, the Tribunal ruled that he must continue in that forum.
“This is not a situation where the applicant is left with a right without a remedy,” the Tribunal stated. “Rather, having chosen to start proceedings in court on the same facts and issues, the applicant is restricted to advancing his claims in that forum.”
Based on these findings, the HRTO dismissed D.H.’s application under section 34(11) of the Code.
For more information, see Howe v. Valiant Machine & Tool Inc., 2025 HRTO 457 (CanLII).
