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Human Rights Tribunal barred from hearing application: no forum-shopping allowed


The Ontario Human Rights Tribunal recently examined an application before it and an earlier statement of claim made in civil court by the same person, and concluded that the claims were virtually identical. They were based on the same facts, made the same allegations and sought similar remedies. Subsection 34(11) of the Ontario Human Rights Codeprevented the tribunal from hearing the application.

Essentially, the tribunal prevented the duplication of claims in different forums and dismissed the human rights application.

The applicant filed an application with the Human Rights Tribunal, alleging discrimination and reprisal against her employer on the ground of disability and sex. She claimed that her employer treated her unfairly and ultimately dismissed her when she tried to return to work following a short-term disability leave.

Then it became known that the applicant had already made a wrongful dismissal claim in civil court against the employer. Therefore, the employer filed a request with the tribunal that the application be dismissed because there was an ongoing civil court action concerning the exact same matter.

Subsection 34(11) of the Human Rights Code states that a person cannot make an application under the Code if a civil proceeding has been commenced in court, a court has already determined the issue of whether the right was infringed, or the matter has been settled.

The tribunal carefully examined the claims at the tribunal and at court, and concluded that the applicant relied on the identical facts, alleged that the same types of employment-related disability and gender rights were violated, and sought similar remedies.

The tribunal noted that the provision in the Code is there to prevent this kind of duplication from occurring, and the applicant was barred from bringing her application to the tribunal. As a result, the tribunal application was dismissed.

Employers should be aware of this decision. When a claim is brought against them in multiple forums, employers are recommended to be proactive in limiting the duplication of proceedings. As can be seen in this case, a request to dismiss an application at the tribunal is appropriate in situations where the same matter is in progress or has already been dealt with in court. It is important to prevent an employee’s forum-shopping before it gets out of hand and various decisions are made on the same matter. This requires the employer to be aggressive by bringing the request to dismiss before the tribunal as soon as possible.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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