The Human Rights Tribunal of Ontario (HRTO) has dismissed an application alleging employment discrimination based on disability and age, as well as reprisal, citing section 34(11) of the Ontario Human Rights Code. The decision underscores the Code’s provision that individuals cannot pursue a human rights application if they have already commenced a civil proceeding on the same matter.
In the case Wilson v. Valentine Coleman Inc., adjudicator Leah Simon ruled on October 21, 2024, that the HRTO lacks jurisdiction to hear the application filed by S.W. The applicant had alleged that her former employers discriminated against her, but she had also initiated a civil lawsuit addressing similar issues.
Background of the case
S.W., a 59-year-old employee at the time of her dismissal, filed an application with the HRTO alleging discrimination in employment due to disability and age, along with claims of reprisal. The respondents included multiple corporate entities and individuals, notably V.C. Inc., V.C. 1 Inc., V.C. 2 Inc., V.C. 3 Inc., H.V., M.R., and A.R.
Concurrently, S.W. filed a civil claim against two of the organizational respondents—Numa Management Consultants Inc. and V.C. Inc.—as well as an additional corporate entity, Castlepoint Numa Inc. Both the HRTO application and the civil claim centered on the termination of S.W.’s employment, albeit with differing facts, remedies sought, and legal theories.
Legal reasoning
The HRTO’s dismissal hinged on section 34(11) of the Code, which states:
“A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or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.”
Adjudicator Simon noted that under section 46.1, courts have the authority to award remedies for infringements of the Code within civil proceedings. Therefore, the HRTO does not have discretion to stay an application pending the outcome of a civil claim when section 34(11) is engaged.
“Under section 34(11), the Tribunal does not have the discretion to do as the applicant requests and stay the Application pending the completion of the civil claim,” Simon stated. “Where section 34(11) is engaged, the application is barred by statute at the outset and the Tribunal has no jurisdiction to consider the application immediately, or after the completion of the civil claim.”
Attempt to split claims
S.W. argued for a stay of the HRTO proceedings, expressing intent to return to the Tribunal if the civil claim did not provide adequate remedies. However, the adjudicator found that the applicant was attempting to “artificially separate her allegations into two categories”—those pertaining to alleged breaches of the Code and those related to wrongful termination.
Simon emphasized that both proceedings arose from “one factual matrix, the focus of which is the termination of the applicant’s employment.” She cited recent case law supporting a broad interpretation of section 34(11), including Ingram v. Human Rights Tribunal of Ontario (2022 ONSC 3737) and Zheng v. G4S Secure Solutions (Canada) Ltd. (2022 ONSC 93).
In Zheng, the Divisional Court stated: “You do not get two kicks at the same set of facts.” Similarly, Simon noted, “The law on section 34(11) has evolved and… its operation can no longer be avoided by tactical pleadings.”
Conclusion
The HRTO’s decision to dismiss S.W.’s application reinforces the mandatory nature of section 34(11) of the Human Rights Code. Individuals who have initiated civil proceedings addressing alleged infringements of the Code cannot simultaneously pursue applications before the HRTO based on the same underlying facts.
“For the reasons above, I find the Tribunal does not have the jurisdiction to consider the Application,” Simon concluded.
For more information, see Wilson v. Valentine Coleman Inc., 2024 HRTO 1453 (CanLII).
