Civil suit based on same facts; last incident of discrimination 3 years before complaint
An Ontario worker’s discrimination complaint against his former employer and the workers’ compensation board has been dismissed for being substantially similar to their civil wrongful dismissal claim and for being too late.
The worker filed a complaint of discrimination with respect to services and employment because of disability, creed, and age, against the Ontario Workplace Safety and Insurance Board (WSIB) on March 16, 2022. The worker alleged several incidents of discrimination occurring on Dec. 31, 2010, Aug. 9 and 26, 2011, Nov. 6, 2018, and ending with a decision by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) on May 26, 2021.
The WSIAT decision upheld an earlier decision by an appeals resolution officer that denied the worker entitlement to worker’s compensation benefits. The worker sought “pecuniary damages or actual calculable losses for the loss of income benefits, and healthcare treatment benefits” along with compensation for harm to their dignity and self-respect.
One month before the worker filed the human rights complaint, they launched a civil claim for wrongful dismissal against their former employer and the WSIB in the Ontario Small Claims Court. In that claim, they alleged that the employer and the WSIB incorrectly deemed them to not be disabled and capable of working, leading to a wrongful revocation of their benefit payments and an assessment of overpayment. The worker claimed damages for loss of income and breach of the duty of care, procedural fairness, and the Charter of Human Rights.
One-year limitation period
The tribunal noted that the Ontario Human Rights Code requires complaints to be filed within one year of the incident related to the complaint or, if there was a series of incidents, the last incident in the series. Complainants are allowed to apply for an extension of the time limit if “the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.” This is to ensure that human rights complaints are dealt with expeditiously and the complainant acts with due diligence, the tribunal said.
In addition, the code prohibits human rights complaints if there is a civil proceeding related to the same alleged infringed right, in order to avoid a duplication of proceedings.
The tribunal found that the May 26, 2021, WSIAT decision could not be considered a separate contravention of the code because it was “the continuing effect or consequence of the previous decisions with which the [worker] disagreed and not an independent act of discrimination.” Without that decision, none of the other alleged incidents of discrimination occurred within a year of the worker’s filing of their complaint, with the most recent being more than three years before, the tribunal said.
The tribunal also found that the worker provided no evidence that the delay was incurred in good faith. Without such proof, there was no reason to forego the one-year time limit, the tribunal said.
Civil claim sought remedy based on same facts
The tribunal also found that the worker’s civil wrongful dismissal action was based on substantially the same facts as the human rights claim, and the damage claim was based on the same actions of the worker’s former employer and the WSIB decision-makers. In addition, the same facts would need to be proved in both proceedings, which could lead to duplicate litigation, said the tribunal, adding that there didn’t have to be a reference to the code in the civil claim for it to be substantially the same as the human rights complaint.
“I find that the [worker] implicitly or indirectly raises code-related interests in their civil case,” said the tribunal. “In both cases the [worker] alleges that the WSIB decision-making processes unfairly assessed the [worker] as misrepresenting their level of impairment (disability) resulting in the [worker] losing their WSIB benefits.”
Even though the Small Claims Court had a lower limit for damage awards, the tribunal determined that the worker was trying to receive similar remedies from the court and the tribunal for loss of income and charter infringements. As a result, the human rights complaint could not continue, said the tribunal in dismissing the complaint.
