Constructive dismissal action was based on same facts as complaint
The Ontario Human Rights Tribunal has dismissed a worker’s application alleging discrimination because the worker filed a civil claim for constructive dismissal arising out of the same facts.
The worker was an employee of Hyde Park Heating & Plumbing in London, Ont.
According to the worker, they were mocked for an inability to work weekends, their bonus pay was changed to candy and change, they were accused of sleeping on the job, and continued to lead them to believe that they would be recalled after a layoff of several months.
After their employment was terminated, the worker filed an application before the Human Rights Tribunal alleging that Hyde Park mistreated and terminated them at least in part because of a disability and/or a perceived disability, resulting in discrimination under the Ontario Human Rights Code.
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Constructive dismissal claim
Some time later, the worker launched a civil proceeding against Hyde Park seeking damages for constructive dismissal arising from the termination of their employment. In the civil proceeding, the worker alleged that the company mistreated them during their employment and unlawfully terminated them. The damages sought included compensation for wage loss plus general, aggravated, and punitive damages for adverse treatment.
Hyde Park filed a request for the tribunal to dismiss the worker’s human rights application because it duplicated the civil action. Under s. 34(11) of the Human Rights Code, a complainant cannot make an application under the code if that complainant has commenced a civil proceeding in court that seeks an order for monetary compensation or restitution arising out of an infringement of the code, regardless if discrimination is alleged in the civil proceeding. The code permits a court to make such an order.
The tribunal noted that the purpose of s. 34(11) is to eliminate duplicate court and tribunal proceedings along with “the risk of inconsistent findings from duplicative proceedings.”
The tribunal found that the facts of the application and the civil proceeding were substantially the same and they sought remedies for the same issues, which involved mistreatment by Hyde Park. Although the civil proceeding claimed constructive dismissal, it was centred around the same conduct by the company and raised code-related interests, said the tribunal.
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Risk of inconsistent findings
The tribunal determined that allowing the human rights application to proceed with facts and issues substantially the same as the civil proceeding would cause it and the court to make findings on the same facts. The overlap created that risk of inconsistent findings on the alleged adverse treatment and manner of termination, the tribunal said.
The tribunal noted that some case law allowed case-splitting, but those involved circumstances where the civil proceedings for wrongful or constructive dismissal didn’t allege infringements of the code or seek remedies for such infringements.
The tribunal dismissed the worker’s human rights application, noting that he still was pursuing his right to a remedy in the courts.
“While not identical, the remedies sought for aggravated and punitive damages in the civil claim can serve to remedy the consequences to the [worker] of the alleged discrimination since the adverse treatment at issue is substantially the same,” said the tribunal. “Moreover, if the court finds that the [employer] has violated the code, it has broad discretion to grant monetary compensation and restitution under… the code.”
See Davey v. Hyde Park Heating & Plumbing Ltd., 2023 HRTO 896.
