You don’t get two kicks on the same facts says the HRTO

In Almseideen v. McKesson Canada, 2023 HRTO 255, Adjudicator Cherniak had a situation where an applicant had filed a HRTO complaint claiming that he was terminated in breach of the Code and also filed a civil wrongful dismissal action which claimed wrongful dismissal damages due to the the failure to receive proper notice.

The Tribunal noted that the civil action did not contain any allegations of a Code violation, although they could have added such a claim to the civil action but choose not to do so.

This is what the Adjudicator said:

17]     The Tribunal addressed the application of subsection 34(11) of the Code in Zheng v. G4S Secure Solutions (Canada) Ltd., 2019 HRTO 407 (affirmed by 2022 ONSC 93, leave to appeal to the Court of Appeal refused). In that case, the Tribunal found that although the applicant removed any mention of Code-based allegations from their civil claim, the allegations set out in the application and the civil claim were virtually identical in their substance. The Tribunal then dismissed the application for that reason. As the Divisional Court stated at paragraph 37:

This is not a question of shaping the civil action so as to avoid reference to the allegation of discrimination. The facts are the same. A self-represented party would not be aware of our courts’ general antipathy to a multiplicity of proceedings. Having decided to go to court, relying on the same impugned actions as those alleged to have been discriminatory in a complaint to the Human Rights Tribunal of Ontario means that 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.

My Comments:

This should put an end to at the plaintiff practice of starting a clean wrongful dismissal action and also bringing a HRTO application claiming that there was discrimination at play. This tactic was developed for several reasons.

First it forced the Defendant to fight in two places which would increase their sunk legal costs in so far as there is no costs awards at the HRTO.

Secondly if the Plaintiff lost the civil action they could still try the Tribunal route, again with no risk of an adverse cost award.

This tactic was intended to put extra pressure on the Defendant to settle.

I suspect one of the reasons for the Tribunal decision is to try to lessen their outrageous backlog.

A more recent decision of the HRTO confirmed the same position. See Koufis v. James Campbell Inc. o/a McDonald’s Restaurant, 2023 HRTO 475 (CanLII)

Query: If the civil courts can easily handle Code based cases, then why do we even need the HRTO?

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Barry B. Fisher LL.B.

Barry B. Fisher, LL.B., is a mediator and arbitrator of both employment and labour relations matters. He offers three forms of ADR based on clients’ needs: Mediation, Arbitration and Med/Arb. Barry is from the evaluative school of mediation and brings his over 30 years' experience as an employment lawyer and legal author to the dispute. In addition to his knowledge of the legal issues involved in these disputes, he also has a deep understanding of the psychological factors that motivate both employees and employers. By combining these two skills, Barry is able to achieve a settlement rate of over 80% of the disputes that he mediates.

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