HRTO Sends Clear Message to Applicants to Avoid Multiplicity of Proceedings

Discipline and Dismissals | Human Rights

When an employee has a cause of action against their current or former employer, there may be multiple venues available to them to pursue damages. For example, an employee who is dismissed for discriminatory reasons has the option of pursuing damages through the court process, via a claim for wrongful dismissal with additional damages for breach of the Human Rights Code (the “Code“), or by bringing an application with the Human Rights Tribunal of Ontario (the “HRTO“).

Generally speaking, the employee must choose one venue in which to seek their damages. This is to avoid the potential for “doubling-up” of damage awards (in other words, an employee is awarded damages twice for the same breach by the employer) and the resource drain of having multiple proceedings on the same set of facts.

The HRTO recently confirmed this general principle in Almseideen v McKesson Canada. In this case, the employee brought an application to the HRTO claiming that they were dismissed for discriminatory reasons in breach of the Code. The Application sought damages for lost wages and damages for injury to dignity, feelings and self-respect. The employee also commenced a civil proceeding seeking, among other things, damages for wrongful dismissal. The civil claim did not contain any allegations whatsoever connected to the employer’s alleged breach of the Code, which the employee admitted was a deliberate choice so as to be able to pursue action in both forums.

Although the civil claim and the HRTO applications sought different types of damages (with some notable overlap between the claim for lost wages and the claim for wrongful dismissal damages), the HRTO found that the allegations in both actions were virtually identical in substance and that only one could be allowed to proceed. The adjudicator noted that “in my view, 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.” As a result, the adjudicator determined that the HRTO had no jurisdiction to hear the Application and it was dismissed.

This decision sends a strong message to employees that “case-splitting”, which involves separating out your action into two forums in an effort to get “two kicks at the same set of facts”, will not be tolerated. Employees should consult with their employment lawyer and carefully consider which is the appropriate forum to pursue their damages before taking action.

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