Ontario Human Rights tribunal considers possible duplication of proceedings
The Ontario Human Rights Tribunal has dismissed a worker’s discrimination complaint because the worker had already filed a parallel civil proceeding involving the same facts and allegations against the employer.
The worker was employed with Teva Canada, a pharmaceutical company based in Toronto. In 2002, he was injured at work, causing a permanent impairment for which he received a non-economic loss benefit from the Ontario Workplace Safety and Insurance Board in 2010.
As a result of the workplace injury, the worker had permanent work restrictions. However, he felt that he was subjected to bullying, harassment, and discrimination from co-workers and supervisors who didn’t believe his disability was as bad as he claimed. According to the worker, Teva didn’t accommodate his disability for six years until 2008, when he was given modified duties.
One particular co-worker publicly and repeatedly questioned whether the worker’s medical restrictions were legitimate, criticized him for no performing his regular duties, and often called him a “lazy Chinese.” The worker said that he complained to management about the bullying behaviour, but the company didn’t properly investigate and instead unfairly disciplined him for yelling at the co-worker.
Termination of employment
Teva terminated the worker’s employment on March 17, 2022. The worker believed that he was terminated at least in part because of his disability, accommodation needs, and as a reprisal for complaining about the harassment he experienced.
The worker sued Teva in a civil action before the Ontario Superior Court of Justice, seeking damages for wrongful dismissal, $40,000 in damages for discrimination based on disability in breach of the Ontario Human Rights Code, and $40,000 in damages for the intentional infliction of mental distress, reprisal and/or harassment.
Seven months after launching the civil action, the worker filed a human rights application against Teva, alleging discrimination in employment because of race, disability, and age, plus a reprisal.
In October 2022, an attempt at mediation in the civil action was unsuccessful. The parties missed certain deadlines under the Rules of Civil Procedure and the worker stopped hearing from his legal counsel.
Code prohibits duplication of actions
Teva applied for the application to be dismissed on the basis that the application was barred by s. 34(11) of the Ontario Human Rights Code, which prohibits someone from making a human rights application if they have commenced “a civil proceeding in a court in which the person is seeking an order… with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn,” or if the same issues have been determined by a court or settled.
The tribunal noted that the purpose of s. 34(11) of the code is to avoid duplicative court and tribunal proceedings, “which tax limited judicial and administrative resources, risk inconsistent findings of fact, and prejudice a respondent by requiring it to defend the same allegations twice.”
The tribunal sent the worker a request for additional submissions as to why his human rights application shouldn’t be dismissed as a duplication of his civil proceeding. The worker responded that his application pursued different allegations than his wrongful dismissal suit and the court action didn’t seek damages for breach of his rights under the code.
The worker also argued that he had to split his case because the court had limited jurisdiction to assess and determine a remedy for his human rights-related allegations, pointing out that the province’s Workplace Safety and Insurance Act prevented him from filing a civil action based solely on a human rights breach or a tort of harassment. In addition, he said that his civil claim was no longer active.
Human rights damages
The tribunal pointed out that the worker’s wrongful dismissal did, in fact, claim damages for infringement on his rights under the code - $40,000 each for disability discrimination and the intentional infliction of mental distress, reprisal, and harassment. In addition, the worker’s court action sought a declaration that Teva had violated his rights under the code.
The tribunal found that the worker’s civil proceeding and his human rights application were duplicate actions addressing the same issues, and therefore the application was precluded by s. 34(11) of the code. While there are some differences in the scope and procedure of the courts and the tribunal, the same allegations can’t be pursued in both forums, the tribunal said.
“It is up to a litigant to decide which forum is most advantageous considering the nature of their claim and their objectives,” said the tribunal.
The Tribunal also addressed the worker’s argument that the civil claim might no longer be active due to inactivity and lack of communication from counsel. There was no evidence that the court proceeding had been dismissed or withdrawn and, even if it was, it was still active at the time the worker filed the human right application, the tribunal said.
The tribunal also noted that communications between the worker and his counsel in the civil claim revealed that the worker had confirmed that he wouldn’t file a human rights application. This indicated that the worker was aware that there could be jurisdictional conflicts if he filed an application with the tribunal when he already had a civil claim going, the tribunal said.
The tribunal determined that, while the worker may have been frustrated with the progress of his civil claim, there was no basis for him to file a human rights application on the same issues under s. 34(11) of the code. The application was dismissed.
