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One of these things is (not) like the other

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These are the words, or more accurately the lyrics (I think they may belong to a Sesame Street song sung by Big Bird about his bowls of bird seed), that came to mind when I recently had opportunity to read the case of Stephen Henshaw v. Rochester Place Resort Inc.  2014 HRTO 1727 (Can LII).  The case reminds us that proceeding with claims alleging identical Ontario Human Rights Code related violations in multiple venues will not be permitted by the Ontario Human Rights Tribunal.

This was an application filed under section 34 of the Ontario Human Rights Code RSO 1990 Chapter H 19 alleging discrimination with respect to employment because of disability and age.

On November 21, 2014 the Tribunal received a request from counsel for the applicant seeking to have the application deferred on the basis that the applicant had filed a notice of claim in small claims court on November 18, 2014.  The applicant implied that the human rights application was broader in scope than the civil action. He argued that it was impossible to know the outcome of the small claims court action and that deferral was a more appropriate step to take than dismissal. The Tribunal disagreed and reiterated the language set out in section 34 (11) and also made reference to the case of Beaver v. Dr. Hans Epp Dentistry Professional Corporation 2008 HRTO 282(Can LII) where the Tribunal discussed the purpose of section 34 (11) and stated that it “was intended to eliminate duplicate court and tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application of the tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where the court has finally determined the issue of whether the right has been violated, or whether the matter has been settled.”

The determinative question to be considered in undertaking a section 34 (11) analysis is whether the civil action explicitly or implicitly raises Code-related interests and seeks a remedy for those alleged human rights concerns.

The Human Rights Tribunal in this case went on to compare and contrast the small claims court action in the human rights application. The Tribunal concluded that in both proceedings the applicant relied on the same incidents, specifically the alleged reduction in wages and demotion, and his claim was that he was constructively dismissed. In both proceedings the Tribunal found that he alleged the identical type of human rights contraventions, and sought a remedy for the same. The Tribunal also noted that the applicant sought general damages for the loss of dignity flowing from the alleged discrimination in both proceedings.

 Lessons Learned:

If you are respondent in a Human Rights Tribunal matter where the complainant has filed multiple proceedings in different venues it is important to scrutinize the claims or pleadings and where one of these things is just like the other, bring a s. 34 (11) motion to dismiss.

If you are an applicant in a Human Rights Tribunal matter, make sure that the Tribunal is the only venue where you raise Human Rights Code violations, otherwise your application to the Tribunal can be dismissed.


About the Author: Toronto Employment Lawyer Patrizia Piccolo is a trusted advisor to senior executives in transition; provides strategic advice and training to both large and small employers and their human resources and management teams; and is entrusted by employers and their counsel to conduct investigations into harassment and other problematic workplace behaviour. She also advises employers on employment related regulatory issues including, Employment Standards Act, Human Rights Act, Labour Relations Act and Workplace Safety and Insurance Act compliance.