'You do not get two kicks at the same set of facts'
An Ontario worker’s complaint of his employer’s failure to accommodate him and discriminatory dismissal has been dismissed by the Ontario Human Rights Tribunal because the worker filed a civil wrongful dismissal action in court over the same matter.
The worker was an employee of the Toronto Transit Commission (TTC), the transit agency serving the City of Toronto. On April 23, 2019, the worker’s employment was terminated.
The worker also filed a human rights complaint with the Ontario Human Rights Tribunal alleging that the TTC failed to accommodate his disability and his dismissal was related to his disability, making it discriminatory.
In April 2021, the worker launched a civil action against the TTC in the Ontario Superior Court of Justice, asserting that the TTC’s failure to accommodate him led to wrongful dismissal.
In September 2023, the TTC submitted a request for a summary hearing on the grounds that the worker’s human rights complaint should be dismissed under s. 34(11) of the code, which stipulates that a person who has commenced a civil proceeding in court in relation to the same facts, a court has already determined whether the rights in question have been infringed, or a settlement has been reached in the civil proceeding, can’t make a complaint to the tribunal regarding the same issue.
The tribunal noted that s. 34(11) is meant to eliminate duplicate proceedings that both allege breaches of the code. Otherwise, it would be unfair for the TTC or a respondent in a similar situation to have to defend against the same set of facts twice. In addition, duplicate proceedings would carry the risk of two different and contradictory remedies for the same issue, the tribunal said.
The tribunal found that the worker’s civil claim did not explicitly reference the code, but it related to the same events around the worker’s employment and termination that the worker alleged constituted discrimination in his human rights complaint. Although the worker tried to separate the allegations of discrimination and wrongful dismissal, they were “all part of one factual matrix” that would have to be considered in either proceeding, said the tribunal.
The tribunal referred to the Ontario Divisional Court’s comments in a 2022 decision that said that when the same impugned actions are part of a civil action and a human rights complaint, “the court is in a position to deal with the matter fully, including any allegation of discrimination. In short, you do not get two kicks at the same set of facts.”
Code prohibits duplicate actions
The tribunal found that the worker’s civil action and human rights application made the same claims of discrimination, unfair treatment, and wrongful dismissal, and they sought similar remedies. As a result, the civil action and the complaint were essentially the same and, as a result, the human rights complaint was statute-barred.
“The overlap present in the civil claim and this [human rights] application is exactly what s. 34(11) of the code was intended to prevent,” said the tribunal.
The TTC’s application for summary dismissal of the worker’s human rights complaint was granted. See Kanhi v. Toronto Transit Commission, 2023 HRTO 1610.